Dear Andrew and Mindy

Thank you very much for both your responses, which are very helpful
and in particular for the cases you mention!

Kind regards

Ger

On 12/6/13, Mindy Chen-Wishart <mindy.chen-wishart@law.ox.ac.uk> wrote:
> 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
>
>
> On 6 Dec 2013, at 02:03, Andrew Robertson
> <a.robertson@unimelb.edu.au<mailto:a.robertson@unimelb.edu.au>>
> 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<mailto: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
>
>
>
>
>