From Sailors to Fishermen: Contractual Variation and the Abolition of the Pre-existing Duty Rule in New Zealand

Abstract

The doctrine of consideration and its place in English (and subsequently New Zealand and Australian) contract law has been under siege since the middle of the eighteenth century.¹ Although consideration has withstood direct assaults from both the bench² and from law reformers over the years,³ its Holdsworthian image as an anachronistic doctrine tied to the law of actions long since dispensed with, has proved impossible to entirely shake off.⁴ Laudable attempts to re‐conceptualise consideration as a doctrine central to past and present contract law based on a re‐reading of legal history⁵ have failed to prevent it from being modified or marginalised in order to respond to perceived pressures of justice and commercial reality.⁶ Moreover, the function of consideration as an arbiter of agreements to vary long‐standing arrangements has also been challenged by the development of alternative doctrines such as duress and promissory estoppel. Nevertheless, up until recently, no twentieth or twentyfirst century court within the jurisdictions of England and Wales, Australia or New Zealand had directly challenged the requirement of consideration within the context of contract formation or variation per se.