And then there is Luxor (Eastborne) Ltd v Cooper
(1941) which seems right up your street. The House of Lords denied a real estate agent’s claim for a £10,000 commission payable on completion of a sale when the agent found buyers but the owners refused to complete. The commission
was the equivalent of a Lord Chancellor’s annual payment for work done within eight or nine days, and the court held that the common understanding was that estate agents take ‘the risk in the hope of a substantial remuneration for comparatively small exertion’
(at 126).
So the court can 'construe' the nature of the agreement entered by the parties and find the 'discretionary' element you mention even if it were not express.
If it was express "I will do X unless I change my mind", (or 'if I feel like it'), then it seems more questionable whether there is anything more than illusory consideration. There would also be a question
of the parties' intention to create legal relations. what would be the remedy for such a contract? could it even be breached?
But then, the question of discretionary promise may arise with respect to complete exclusions of liability, or very wide / complete power to cancel/terminate the contract.
best,
Mindy
wrote:
Dear Ger,
Whether the arrangement you describe can constitute a binding contract
depends on whether A remains free to withdraw even after B has performed
the specified steps. If B is free to take the specified steps or not as he
or she chooses then the arrangement is clearly not a bilateral contract,
but could constitute a unilateral contract if A becomes bound to confer
the benefit if B takes the specified steps. If A remains free to withdraw
from the arrangement and refuse the benefit even after B has performed
then A¹s promise is clearly illusory and the arrangement is not binding on
either party.
Views differ on the question whether an offeror under a unilateral
contract can withdraw after the offeree has embarked on performance: see
Daulia Ltd v Four Millbank Nominees Ltd [1978] Ch 232 and the decision of
the Full Court of the Federal Court of Australia in Mobil Oil Australia
Ltd v Wellcome International Pty Ltd (1998) 81 FCR 475.
With best wishes,
Andrew
On 6/12/2013 9:39 am, "Gerard Sadlier" <gerard.sadlier@gmail.com> wrote:
ear all,
I am looking for cases on the question whether there can be
consideration in an arrangement where 1 party "A" agrees to confer a
benefit on the other party "B" in say 3 months, if B takes certain
steps but both A and B retain the right to terminate the arrangement
at any time before conferral, for any reason whatever.
Can such an arrangement constitute a binding contract before the steps
are taken and the benefit conferred?
In practical terms, the benefit is that neither party thinks that the
other will resile, though both accepts that they are free to do so.
Comments welcome.
Kind regards
Ger