# An Examination of the Issue, Facts, and Judgment in *Stilk v Myrick*
The Issue
The central legal issue in the case of *Stilk v Myrick* (1809) concerns the doctrine of consideration within the law of contract. Specifically, the court had to determine whether the performance of, or a promise to perform, a pre-existing contractual duty owed to the promisor can constitute good consideration for a new promise made by that same promisor. In this case, the question was whether the sailors’ promise to continue working the ship after some of their colleagues had deserted was sufficient consideration to enforce the captain’s promise of extra wages.
Basic Facts of the Cases
The case arose from a voyage from London to the Baltic and back. The claimant, Stilk, was a seaman who had signed articles of agreement to serve on a ship owned by the defendant, Myrick. The agreement stipulated that Stilk would be paid wages of £5 per month. The ship’s crew originally consisted of eleven sailors. During the voyage, two of the crew deserted the ship in a foreign port.
Finding himself shorthanded, the captain was unable to recruit replacements. He therefore gathered the nine remaining crew members, including Stilk, and promised them that if they worked the ship back to London, he would divide the wages of the two deserters equally between them. The crew agreed and successfully brought the ship home. However, upon their return to London, the captain refused to pay the additional money he had promised. Stilk brought an action against the captain to recover his share of the extra wages.
It is notable that there are two law reports for this case which offer different reasons for the decision, although both reach the same outcome. The Campbell report is the one most commonly cited in legal education (McKendrick, 2022), while the Espinasse report provides an alternative rationale.
The Judgement of the *Stilk v Myrick*
The court held in favour of the defendant, Myrick, finding that the captain’s promise to pay extra wages was unenforceable due to a lack of consideration from the claimant, Stilk, and the other sailors. Lord Ellenborough’s judgment set a key precedent for the rule that performance of an existing contractual duty is not good consideration for a new promise.
The reasoning in the two separate reports differs slightly. According to the Campbell report, which is the more authoritative version, the sailors had not provided anything new of value in exchange for the captain’s promise. Their original contract required them to do all that was necessary in the ordinary emergencies of the voyage. The desertion of two crew members was considered such an emergency. Therefore, in continuing to work the ship home, they were merely fulfilling their existing contractual obligations. Lord Ellenborough stated that the agreement was “void for want of consideration” (*Stilk v Myrick* (1809) 2 Camp 317).
By contrast, the Espinasse report based the decision on grounds of public policy. This report suggests the concern was that allowing such promises to be enforced would open the door for sailors to extort their captains by refusing to work or threatening to desert while at sea unless they were promised more money (*Stilk v Myrick* (1809) 6 Esp 129). While the policy argument has some force, it is the consideration-based reasoning in the Campbell report that has been accepted as the primary legal principle to be taken from the case.
The traditional rule in *Stilk v Myrick* has, however, been significantly refined by the later case of *Williams v Roffey Bros & Nicholls (Contractors) Ltd* [1991] 1 QB 1. In that case, the Court of Appeal held that if a party’s promise to perform an existing duty confers a ‘practical benefit’ on the other party, this can be sufficient consideration, provided there is no economic duress or fraud. This modern approach suggests that while the core principle of *Stilk v Myrick* remains, its application has been limited in commercial contexts where a practical benefit can be clearly identified.
References
McKendrick, E. (2022) *Contract Law*. 15th ed. Red Globe Press.
*Stilk v Myrick* (1809) 2 Camp 317, 170 ER 1168.
*Stilk v Myrick* (1809) 6 Esp 129, 170 ER 851.
*Williams v Roffey Bros & Nicholls (Contractors) Ltd* [1991] 1 QB 1.
