Past consideration
Past consideration refers to an act performed prior to, and to that extent
independent of, the promises being exchanged. In other words, the action that was
performed was not done in contemplation of, or in response to, a promise given.
Consequently, the general rule is that past consideration is not valid consideration.
The case of Roscorla v Thomas (1842) illustrates this point. At T’s request, R bought
T’s horse for $30. After the sale, T promised R that the horse was “sound and free of
vice”. The horse proved to be vicious. The court held that the defendant’s (T) promise
was made after the transaction had already been concluded and was therefore past
consideration.