Consideration, privity and economic duress | AQA A-Level Law
For Specification 7162
AQA A-Level Law | Free Revision Notes
Estimated study time: 35–45 minutes
Consideration does more than identify the exchange supporting contractual promises. It also helps explain who can acquire contractual rights through privity of contract, while economic duress asks whether an apparent contractual bargain was genuinely voluntary. This Consideration, privity and economic duress A-Level Law revision page examines how these principles interact and how they affect contractual liability. It develops the rationale for consideration [The rationale for consideration] and prepares you for the detailed substantive rules in consideration [Consideration] and privity of contract [Privity of contract].
Learning Objectives 🎯
By the end of this revision page, you should be able to:
Explain the relationship between consideration and privity of contract.
Explain why contractual rights and obligations traditionally relate to participation in the contractual bargain.
Explain how economic duress interacts with consideration.
Analyse why valid consideration does not necessarily prove that a contractual variation was genuinely voluntary.
Explain how privity and economic duress can affect contractual rights and enforceability.
Apply these relationships to contractual scenarios.
Revision Notes 📚
Consideration, privity and economic duress A-Level Law revision
AQA specifically requires students to understand:
the rationale for consideration
the relationship between consideration and privity
the relationship between consideration and economic duress.
These principles all connect with the wider idea that a contract is based upon a voluntary bargain.
They answer different questions:
Principle | Central question |
Consideration | What has been provided or promised in return for the other party's promise? |
Privity | Who can normally acquire rights and obligations under the contract? |
Economic duress | Was a contractual promise or variation obtained through improper economic pressure? |
The three concepts should therefore be distinguished, but they also need to be understood together.
Recap: consideration
Consideration concerns something supplied in return for another party's promise.
As explained in the rationale for consideration [The rationale for consideration], it helps identify the exchange or bargain supporting contractual obligations.
AQA also identifies consideration as one of the essential requirements of contract formation.
The basic structure is:
Party A's promise ⇄ Party B's consideration
Consideration therefore helps determine whether a promise forms part of an enforceable contractual bargain.
What is privity of contract?
The traditional doctrine of privity of contract provides that contractual rights and duties normally belong to the parties to the contract.
AQA mark schemes express the traditional rule by linking contractual participation with consideration. Only parties to the contract, traditionally those supplying consideration, normally acquire contractual rights and incur contractual duties.
This creates a close relationship between consideration and privity.
Consideration asks:
Who participated in the contractual exchange?
Privity then asks:
Who should normally be able to enforce the resulting contractual obligations, or be bound by them?
The relationship between consideration and privity
The traditional relationship can be represented as:
participation in the bargain → provision of consideration → contractual rights and obligations
A person who provides consideration is participating in the contractual exchange.
By contrast, a third party who has provided no consideration and has not entered the contract will traditionally lack contractual rights against the contracting parties.
This relationship is reflected in AQA assessment materials concerning privity.
Why link contractual rights with consideration?
The connection reflects the bargain-based nature of contract law.
If contractual rights arise from an exchange, there is an argument that the people who participate in that exchange should normally be the people who acquire its rights and obligations.
For example:
A promises to provide goods to B.
B promises to pay A.
A and B have made the contractual bargain.
C has made no promise and supplied nothing to either party.
The traditional privity rule therefore treats A and B differently from C.
This fits the idea that contract law ordinarily enforces obligations voluntarily undertaken between the contracting parties.
A simple example of privity
Suppose:
Amira buys a television from BrightStore.
Amira gives the television to her brother, Callum.
The television is defective.
The contract was formed between:
Amira ⇄ BrightStore
Callum was not a party to that contract and supplied no consideration under it.
Under the traditional privity principle, Callum would not automatically acquire contractual rights against BrightStore merely because he now owns or uses the television.
AQA tested almost exactly this type of problem in 2020 and again in 2025. In both, the starting point was that the third party had not participated in the contractual bargain and therefore did not automatically acquire contractual rights.
Privity can protect as well as restrict
Privity is often described in terms of preventing a third party from acquiring contractual rights.
However, the theory also protects third parties from automatically acquiring contractual obligations.
This is important.
If a person did not participate in the bargain, there is a strong argument that they should not simply be burdened with contractual duties created by other people.
AQA's 2021 mark scheme invited evaluation of whether it is appropriate to exclude from contractual rights and obligations people who have not participated by providing consideration.
Privity therefore works in two directions:
a third party does not normally gain rights
a third party does not normally incur duties.
A theoretical justification for privity
The relationship between consideration and privity can be justified through the voluntary nature of contract.
Contract law is based upon parties choosing to undertake obligations.
A person who did not:
make the agreement
provide consideration
participate in the bargain
has not exercised the same contractual choice.
Privity can therefore be seen as supporting freedom of contract [Freedom of contract] by limiting contractual liability to those who voluntarily participate in the contractual relationship.
The potential unfairness of strict privity
The traditional rule can nevertheless produce difficulties.
Suppose a contract is deliberately made to benefit a third party.
For example:
Dana contracts with Ezra.
Ezra promises Dana that a benefit will be provided to Farah.
Farah is clearly intended to receive the benefit.
Farah is not herself a party to the agreement.
Strict privity could prevent Farah from enforcing the contractual promise even though the contract was deliberately intended to benefit her.
This creates a tension between:
the bargain rationale underlying consideration and privity
achieving the result the contracting parties actually intended.
AQA's 2021 mark scheme specifically recognised this evaluative issue.
Exceptions to the traditional privity rule
The relationship between consideration and privity is therefore not absolute.
AQA assessment materials identify the Contracts (Rights of Third Parties) Act 1999 as a major exception to the traditional doctrine.
AQA's 2025 examiner report explains that a third party may be able to enforce a term where the statutory requirements are satisfied, including circumstances in which:
the third party is sufficiently identified in the contract
the contract expressly permits enforcement by the third party or the term purports to confer a benefit upon them.
The detailed application of these rules belongs to privity of contract [Privity of contract].
For this theory lesson, the important point is:
The relationship between consideration and contractual rights remains important, but modern contract law recognises circumstances in which a person who did not provide consideration may nevertheless acquire enforceable rights.
What does the exception tell us about the theory?
The exception shows that the bargain principle is important but not absolute.
The traditional position emphasises:
participation + consideration = contractual rights
The statutory exception recognises:
a clearly intended third-party benefit may justify enforcement even without traditional participation in the consideration
This means contract law attempts to balance:
the voluntary bargain between contracting parties
protection from unwanted obligations
the intention to benefit certain third parties.
Privity and contractual liability
Privity can determine who can sue whom in contract.
Imagine:
George buys a product from a retailer.
He gives it to Hannah.
The product fails.
Before discussing whether the relevant contractual term has been breached, Hannah must establish whether she possesses contractual rights against the retailer.
If privity prevents Hannah from enforcing the contract, detailed analysis of breach and contractual remedies against that retailer may become unnecessary unless an exception applies.
This demonstrates why privity is not merely a technical doctrine. It can determine whether contractual liability exists between particular people at all.
Consideration and economic duress
The relationship between consideration and economic duress raises a different issue.
Consideration asks whether the necessary exchange exists.
Economic duress asks whether agreement to that exchange was obtained through improper economic pressure.
The distinction is crucial:
Valid consideration does not necessarily mean that the agreement was genuinely voluntary.
This is where economic duress connects with the theory of freedom of contract [Freedom of contract].
What is economic duress?
Economic duress concerns improper economic pressure that affects a party's decision to enter or vary contractual obligations.
The AQA specification requires knowledge of the definition and remedies for economic duress and separately requires students to understand its relationship with consideration.
At theory level, the important idea is that contract law should not automatically enforce a bargain merely because some form of consideration can technically be identified if the agreement was produced by improper pressure.
Why is economic duress important to voluntary contracting?
Freedom of contract assumes that contractual obligations are voluntarily undertaken.
Consider a situation where:
two parties already have a contract
one party demands more money
the other party agrees because of serious economic pressure
something capable of amounting to consideration can be identified.
If contract law looked only at consideration, the modified bargain might appear enforceable.
Economic duress provides a further question:
Was the apparent consent to the new bargain obtained improperly?
The doctrine therefore protects the voluntary basis of contractual liability.
AQA's 2023 materials describe economic duress as recognising the problem of subjecting another party to illegitimate pressure.
Existing contractual duties
The relationship becomes particularly clear where a party demands extra payment for doing something they are already contractually required to do.
Imagine:
Isaac agrees to complete building work for £8,000.
Halfway through, Isaac demands an additional £2,000.
Isaac threatens not to complete the work unless Jade agrees.
Jade urgently needs the work completed and agrees to pay more.
Two questions arise.
Consideration question
What consideration has Isaac provided for Jade's new promise to pay an additional £2,000?
He is apparently promising to perform work that he is already required to perform.
Economic duress question
Even if the consideration requirement can be satisfied, did Isaac obtain Jade's promise through improper economic pressure?
These are separate but connected issues.
Existing duties and consideration
AQA's 2020 mark scheme specifically connects consideration with the performance of an existing contractual obligation.
It identifies Stilk v Myrick and Williams v Roffey Bros as relevant authorities when analysing whether performance of an existing obligation can provide sufficient consideration for a promise of additional payment.
At theory level, you do not need to treat economic duress as merely another consideration rule.
Instead:
consideration determines whether an exchange capable of supporting the new promise exists
economic duress determines whether the agreement to that exchange was improperly obtained.
Why both doctrines may be needed
The rules on consideration alone may not fully control contractual variations.
Suppose the law recognises that continuing to perform an existing contractual duty provides sufficient practical value to support a promise of extra payment.
Without another safeguard, a party might attempt to use its bargaining position to extract additional payment.
Economic duress can therefore operate alongside consideration.
The relationship can be represented as:
Is there sufficient consideration?
↓
If yes, was the promise nevertheless obtained through economic duress?
↓
If duress is established, the agreement may be voidable and rescission may be available.
This is one of the most important analytical relationships in this lesson.
The 2020 AQA problem
AQA has directly assessed consideration and economic duress together.
Evan agreed to pay Felix £4,000 to restore a car. Part-way through the work, Felix demanded another £1,000 and threatened not to finish unless Evan agreed. Evan was particularly concerned because he wanted the car ready for an important competition.
The mark scheme required students to consider:
whether Felix supplied valid consideration for Evan's additional promise when Felix was already contractually obliged to complete the work
whether Felix's conduct amounted to improper economic pressure
whether economic duress could prevent Felix from enforcing the additional promise.
This is an excellent illustration of the relationship AQA expects you to understand.
Consideration does not prove free consent
The central theoretical point is:
Consideration concerns exchange.
Economic duress concerns the quality of consent to the exchange.
Therefore:
consideration present ≠ economic duress impossible
A party can provide something of legally sufficient value while still applying improper pressure to obtain the other person's agreement.
This distinction prevents consideration from becoming the sole measure of contractual enforceability.
Economic duress as a limit on freedom of contract
At first glance, economic duress restricts freedom of contract because it allows courts to interfere with what the parties apparently agreed.
However, there is a powerful counterargument.
If one party's agreement resulted from improper economic pressure, enforcing that agreement without question could undermine genuine contractual freedom.
Economic duress may therefore:
restrict formal contractual freedom
while protecting genuine voluntary choice.
This is similar to the distinction considered in freedom of contract and consumer protection [Freedom of contract and consumer protection].
Economic pressure is not automatically economic duress
Commercial negotiations often involve pressure.
A party may:
bargain firmly
seek a better price
refuse unattractive terms.
The mere existence of economic pressure does not automatically establish economic duress.
The AQA materials focus on improper or illegitimate pressure when explaining why contractual liability may be affected.
The analytical task is therefore to distinguish ordinary commercial pressure from pressure serious enough to affect the enforceability of the agreement.
When is economic duress relevant?
Economic duress is relevant where the alleged pressure relates to the creation or modification of contractual obligations.
This is important because students sometimes identify economic duress simply because the parties are in a difficult commercial situation.
The 2025 examiner report criticised students who raised economic duress in a scenario where neither party was seeking to create modified contractual rights or enter a new contract. In those circumstances, economic duress did not address the actual legal issue.
💡 Exam point: Ask what promise or contractual variation was allegedly obtained through the pressure.
If there is no such agreement, economic duress may be irrelevant.
Remedy for economic duress
Where economic duress is established, the affected agreement is voidable, rather than automatically terminated.
The relevant equitable remedy is rescission.
AQA's 2024 examiner report specifically corrected the mistaken statement that proof of economic duress automatically terminates a contract. Instead, economic duress renders the contract voidable, allowing the affected party to seek rescission.
This distinction is essential.
Do not write:
"Economic duress automatically cancels the contract."
Instead:
"Economic duress may render the agreement voidable and may allow the affected party to seek rescission."
Rescission is not the same as termination for breach
AQA examiner reports repeatedly warn students to use rescission precisely.
Rescission is an equitable remedy associated with matters such as economic duress and misrepresentation.
It is not a general term meaning:
"the contract has ended."
Termination following a repudiatory breach is legally different.
The 2024 examiner report specifically identifies rescission as a remedy that may follow economic duress and distinguishes it from termination for breach.
Comparing the three principles
Principle | Main focus | Effect on contractual liability |
Consideration | Whether something sufficient has been supplied in return for a promise | Helps determine whether the promise is contractually enforceable |
Privity | Whether the person seeking rights or facing duties is a party to the contractual relationship | May prevent a third party from enforcing a contract or being bound by it |
Economic duress | Whether contractual consent was obtained through improper economic pressure | May make an agreement voidable and permit rescission |
The doctrines therefore control contractual liability at different points.
How consideration and privity work together
Consideration and privity traditionally reinforce the bargain model of contract.
The logic is:
parties voluntarily make an exchange
each supplies consideration
contractual rights and duties attach to those participants
outsiders do not automatically gain the benefit or burden of the bargain.
The Contracts (Rights of Third Parties) Act 1999 qualifies this model by allowing certain intended third parties to enforce contractual terms.
This reflects the fact that a strict consideration-based approach to contractual rights can sometimes frustrate the actual purpose of the contract.
How consideration and economic duress work together
Consideration and economic duress perform complementary roles.
Consideration protects the idea of exchange.
Economic duress protects the idea of voluntary consent.
A promise may therefore pass one control and fail the other.
For example:
Stage 1: Is something sufficient being provided in exchange for the new promise?
Stage 2: If so, was that promise nevertheless obtained through improper pressure?
A strong analysis keeps these questions separate.
One principle does not replace another
A common weakness in contract answers is to treat one doctrine as if it automatically answers every contractual question.
For example:
"There was consideration, so the additional payment must be enforceable."
This ignores economic duress.
Or:
"The third party received a benefit, so they must have contractual rights."
This ignores privity.
A better approach is:
"Consideration appears to be present. However, enforceability also depends upon whether economic duress affected the variation."
or:
"The contract clearly benefits the third party. However, the starting point is the doctrine of privity, followed by consideration of any applicable exception."
Privity, consideration and fairness
The relationship between consideration and privity can also be evaluated.
Argument supporting the traditional rule
A person who has not participated in the exchange should not automatically acquire benefits while avoiding contractual responsibilities.
This supports the bargain principle.
Argument against a strict rule
It may be unfair to prevent an intended third-party beneficiary from enforcing a promise specifically made for their benefit.
This supports exceptions such as the Contracts (Rights of Third Parties) Act 1999.
AQA's 2021 mark scheme explicitly encouraged this kind of evaluation.
Economic duress and fairness
Economic duress creates a related but different fairness issue.
A party may formally agree to a variation and may even receive consideration, but the circumstances may show that the bargain was obtained through unacceptable pressure.
Enforcement in such circumstances could allow a stronger party to benefit from exploiting the other's economic position.
AQA examiner commentary has linked economic duress to concerns about taking unfair advantage of economic power.
The doctrine therefore qualifies the simple principle that contractual promises should always be enforced exactly as agreed.
A useful analytical model
When a scenario involves these doctrines, ask three distinct questions.
Question 1: Consideration
What has each party supplied or promised?
Does the new or original promise have sufficient consideration?
Question 2: Privity
Who is seeking to enforce the promise?
Are they a party to the contractual bargain, or do they need to rely upon an exception to privity?
Question 3: Economic duress
How was the promise obtained?
Was the new agreement genuinely voluntary, or was improper economic pressure used?
These questions address:
what was exchanged → who can enforce it → whether consent was voluntary
That sequence captures the relationships required by the specification.
Worked example: consideration and privity
Asha buys a laptop from TechStore as a birthday present for Ben.
The laptop is defective.
Ben wants to sue TechStore.
Analyse the position:
Asha and TechStore made the contract.
Asha supplied the relevant consideration.
Ben did not participate in the bargain.
Under traditional privity principles, Ben therefore has no automatic contractual rights against TechStore.
It would then be necessary to consider whether an exception to privity applies.
This illustrates how consideration helps explain the traditional allocation of contractual rights.
Worked example: consideration and economic duress
Cara agrees to pay Dev £5,000 to complete urgent repairs.
Halfway through, Dev refuses to continue unless Cara agrees to pay a further £1,000.
Cara urgently needs the repairs completed and agrees.
A careful analysis separates the issues:
Consideration
Dev is already contractually required to carry out the work, so the rules concerning performance of an existing contractual duty must be considered.
Economic duress
Even if sufficient consideration for Cara's additional promise can be established, the circumstances surrounding Dev's demand may raise the separate issue of improper economic pressure.
Liability
If economic duress is established, the agreement to pay the additional sum may be voidable and Cara may seek rescission.
This mirrors the relationship examined by AQA in the Felix and Evan problem.
Worked example: when economic duress is irrelevant
Elliot and Farah already have a contract.
A later event makes performance difficult, but neither party asks the other to agree to new terms or a new contractual arrangement.
It would normally be inappropriate simply to say:
"Farah was under economic pressure, therefore economic duress applies."
There must be a relevant contractual promise or variation said to have been obtained through the pressure.
The 2025 examiner report identified this exact problem, where students introduced economic duress despite there being no proposed modified contractual rights or new contractual arrangement.
Linking back to freedom of contract
These doctrines demonstrate that freedom of contract is not simply freedom from legal regulation.
Consideration respects the bargain chosen by the parties.
Privity traditionally restricts the bargain to those who participated in it.
Economic duress prevents apparent agreement from being treated as completely voluntary where improper pressure has been applied.
Together, they illustrate a broader principle:
Contract law seeks to enforce voluntary bargains while also controlling who acquires rights and whether apparent consent was genuinely obtained.
An exam structure for relationship questions
If asked specifically about these relationships, avoid writing three unrelated mini-essays.
Instead organise the response around the connections.
Paragraph 1: Consideration
Explain consideration as the exchange supporting contractual promises.
Paragraph 2: Consideration and privity
Explain how participation in the bargain and provision of consideration traditionally determine who acquires contractual rights and obligations.
Then recognise that exceptions can allow third parties to enforce certain terms.
Paragraph 3: Consideration and economic duress
Explain how consideration establishes the exchange but does not necessarily establish genuine voluntary consent.
Paragraph 4: Existing contractual duties
Use the demand for additional payment to illustrate why both consideration and economic duress may need consideration.
Paragraph 5: Overall analysis
Explain that the doctrines address different aspects of enforceability:
consideration tests the exchange
privity identifies the proper parties
economic duress protects voluntary consent.
From description to analysis
Compare these two answers.
Descriptive
Consideration is needed for a contract. Privity means only parties can sue. Economic duress makes a contract voidable.
Analytical
Consideration and privity are connected because contractual rights traditionally arise from participation in the bargain and provision of consideration. However, this approach is qualified where contract law permits an intended third party to enforce a term. Economic duress performs a different control: even where sufficient consideration exists, enforcement may be inappropriate if the promise was extracted through improper economic pressure. Together, the doctrines determine what bargain exists, who may enforce it and whether the agreement was genuinely voluntary.
The second answer demonstrates the relationships required by Lesson 124.
Key Words 🔑
Key word | Student-friendly definition | How it may be used in an exam |
Consideration | Something of legally recognised value supplied or promised in return for another party's promise. | Use it when deciding whether a promise is supported by a contractual exchange. |
Privity of contract | The principle that contractual rights and obligations normally belong to the parties to the contract. | Use it when deciding whether a third party can enforce a contractual promise. |
Third party | A person who is not one of the parties that made the contract. | Use it when identifying whether the privity rule may prevent contractual enforcement. |
Economic duress | Improper economic pressure affecting a party's agreement to contractual obligations. | Use it when analysing whether an apparent contractual variation was genuinely voluntary. |
Rescission | An equitable remedy that may set aside a voidable agreement, including one affected by economic duress. | Use it when explaining the possible consequence of successfully establishing economic duress. |
Hints from the Examiner Reports 💡
Examiner hint: Do not stop after stating the traditional privity rule. The 2025 examiner report found that stronger answers explained both the traditional rule and the possible application of the Contracts (Rights of Third Parties) Act 1999. Where a third party is involved, check whether an exception must also be considered.
Examiner hint: Identify exactly who supplied consideration. Examiner reports have repeatedly identified confusion where students attach consideration to the wrong person or promise. Track the bargain carefully before deciding who has contractual rights.
Examiner hint: Do not assume proof of economic duress automatically terminates a contract. The 2024 examiner report specifically corrected this misconception. Economic duress renders the relevant agreement voidable and may permit rescission.
Examiner hint: Economic duress must actually be relevant to a contractual promise or variation. The 2025 report criticised answers that introduced economic duress where neither party was trying to create new or modified contractual obligations.
Examiner hint: Keep consideration and economic duress as separate issues. AQA's 2020 assessment required students first to analyse whether an existing contractual duty supplied sufficient consideration for an additional payment, then separately to consider whether improper economic pressure affected enforceability.
Examiner hint: Explain the principle behind the rule rather than simply naming doctrines. The 2023 report found that weaker answers often cited contract rules without explaining the underlying issue they addressed. For this lesson, keep linking the rules to contractual participation, voluntary agreement and enforceability.
Common Mistakes ⚠️
Mistake: Treating consideration and privity as identical rules
Why this is incorrect: Consideration concerns what has been exchanged. Privity concerns who acquires contractual rights and duties.
How to improve: Explain their relationship without merging them: consideration identifies participation in the bargain, while privity traditionally limits contractual enforcement to the parties.
Mistake: Saying a third party can never enforce a contract
Why this is incorrect: The traditional privity rule is subject to exceptions, including the Contracts (Rights of Third Parties) Act 1999.
How to improve: State the traditional rule first, then ask whether an exception applies.
Mistake: Assuming that receipt of a benefit proves privity
Why this is incorrect: A person may benefit from a contract without having participated in the contractual bargain.
How to improve: Identify who made the contract and who supplied consideration before deciding whether the person has contractual rights.
Mistake: Assuming valid consideration prevents economic duress
Why this is incorrect: The doctrines ask different questions. Valid consideration establishes an exchange but does not prove that consent to that exchange was free from improper economic pressure.
How to improve: Analyse consideration first, then consider economic duress separately where the facts raise it.
Mistake: Treating any commercial pressure as economic duress
Why this is incorrect: Economic duress concerns improper pressure affecting contractual consent, not merely the normal pressures associated with bargaining.
How to improve: Identify the specific contractual promise or variation allegedly obtained through the pressure.
Mistake: Saying economic duress automatically ends the contract
Why this is incorrect: Economic duress makes the relevant agreement voidable. Rescission is an equitable remedy rather than an automatic result.
How to improve: Use the precise language: voidable and rescission.
Exam-Style Questions ✍️
Question 1
Which statement best explains the traditional relationship between consideration and privity?
A. Anyone benefiting from a contract automatically provides consideration.
B. Contractual rights and obligations traditionally attach to parties participating in the contractual bargain.
C. Privity means consideration is unnecessary.
D. Economic duress creates privity.
[1 mark]
Question 2
State two ways in which privity can affect a third party.
[2 marks]
Question 3
Explain why valid consideration does not necessarily prevent a claim of economic duress.
[4 marks]
Question 4
Amina buys a bicycle from CycleStore and gives it to Ben. Ben discovers a defect and wants to enforce the contract against CycleStore.
Using the relationship between consideration and privity, explain the starting point for Ben's contractual position.
[5 marks]
Question 5
Cara agrees to pay Dev £4,000 to complete building work. Halfway through, Dev refuses to continue unless Cara promises another £800. Cara reluctantly agrees because she urgently needs the work completed.
Explain why both consideration and economic duress may be relevant.
[5 marks]
Question 6
Eva contracts with Felix for Felix to provide a benefit directly to Grace. Grace provides no consideration and is not herself one of the original contracting parties.
Analyse why the doctrine of privity may initially restrict Grace's contractual rights and why that may not necessarily be the end of the issue.
[10 marks]
Question 7
Hari is already contractually bound to complete repairs for Isla for £6,000. Hari later demands an additional £1,500 and threatens not to finish unless Isla agrees. Isla urgently needs the repairs completed and promises the extra amount.
Analyse how consideration and economic duress may affect Hari's ability to enforce Isla's additional promise.
[10 marks]
Question 8
Examine the relationships between consideration, privity and economic duress and analyse how they affect contractual liability.
[15 marks]
Answers and mark scheme
Question 1
Answer: B
The traditional relationship links contractual rights and duties with participation in the contractual bargain.
1 mark
Question 2
Award 1 mark each for:
a third party may normally be unable to enforce contractual rights
a third party will not normally be burdened with contractual duties arising from a contract they did not make.
Maximum: 2 marks
Question 3
Indicative content:
Consideration concerns whether there is an exchange supporting the contractual promise.
Economic duress concerns the circumstances in which consent was obtained.
Something capable of amounting to consideration may therefore be present.
However, the resulting agreement may still be affected if improper economic pressure produced the promise.
Maximum: 4 marks
Question 4
Indicative content:
The contract was made between Amina and CycleStore.
Amina participated in the bargain and supplied consideration.
Ben is a third party to that original contractual relationship.
Under traditional privity principles, Ben therefore has no automatic right to enforce the contract against CycleStore.
It would then be necessary to consider whether an exception to the privity rule applies.
Maximum: 5 marks
Question 5
Indicative content:
Dev was already contractually required to complete the work.
His promise to continue therefore raises a consideration issue concerning performance of an existing contractual duty.
Cara's additional £800 promise may need sufficient consideration before it can be contractually enforceable.
Separately, Dev's refusal to continue and Cara's urgent position may raise the issue of improper economic pressure.
Even if valid consideration exists, economic duress may affect the enforceability of the additional agreement.
Maximum: 5 marks
Question 6
Indicative content:
Eva and Felix are the contracting parties.
Grace did not participate in the original exchange and supplied no consideration.
Under the traditional doctrine of privity, contractual rights normally belong to the parties to the bargain.
Grace therefore does not automatically acquire enforcement rights merely because the contract benefits her.
However, the relationship between consideration and privity is not absolute.
The Contracts (Rights of Third Parties) Act 1999 provides an important statutory exception.
It would therefore be necessary to consider whether the contract sufficiently identifies Grace and whether the relevant statutory requirements concerning enforcement or conferral of a benefit are satisfied.
A reasoned conclusion should recognise both the traditional rule and the possibility of an exception.
Maximum: 10 marks
Question 7
Indicative content:
Hari and Isla already have a binding contractual relationship.
Hari is already obliged to complete the repairs for £6,000.
His promise to complete the existing obligation raises the question of whether sufficient consideration supports Isla's new promise to pay £1,500.
Relevant AQA authority may include Stilk v Myrick and Williams v Roffey Bros.
Even if sufficient consideration for the additional promise can be established, the analysis does not end there.
Hari threatened not to complete work he was already obliged to perform.
Isla's urgent need for completion provides evidence relevant to whether improper economic pressure affected her consent.
Economic duress therefore provides a separate control over enforceability.
If economic duress is established, the additional agreement may be voidable and rescission may be available.
Hari therefore cannot establish entitlement to the additional payment merely by proving consideration.
Maximum: 10 marks
Question 8
Indicative content may include:
consideration as one of the essential requirements of contract
consideration as the exchange supporting contractual promises
the traditional doctrine of privity
the relationship between participation in the bargain, consideration and contractual rights
the position of third parties who provide no consideration
the way privity also protects third parties from contractual burdens
difficulties caused where a contract is deliberately intended to benefit a third party
the Contracts (Rights of Third Parties) Act 1999 as a qualification of the traditional relationship
economic duress as improper economic pressure affecting contractual consent
the relationship between economic duress and the voluntary nature of a contract
why consideration and economic duress answer separate questions
performance of existing contractual obligations and promises of additional payment
the relevance of Stilk v Myrick and Williams v Roffey Bros to consideration
the possibility that sufficient consideration exists while economic duress nevertheless affects enforceability
the voidable nature of an agreement affected by economic duress
rescission as the relevant equitable remedy
the importance of distinguishing ordinary commercial pressure from economic duress
the need for an allegedly pressured promise or contractual variation before economic duress becomes relevant.
A high-level answer should analyse the connections rather than simply provide three separate definitions.
A substantiated conclusion might argue that the doctrines work together to preserve the bargain-based and voluntary nature of contract law. Consideration identifies the exchange, privity traditionally limits the resulting rights and obligations to those participating in it, while economic duress ensures that the existence of consideration does not automatically make an improperly obtained promise enforceable.
Maximum: 15 marks
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