Date: Fri, 21 Nov 2008 13:30

From: Andrew Tettenborn

Subject: Roffey Bros

Of course Williams is a conceptual disaster: the argument in the CA doesn't hang together, is transparently specious, and wouldn't get that many marks if it came from one of our students.

The difficulty is, of course, that it's very difficult for anyone – apart perhaps from a participant at a common lawyers' get-together – to say, hand on heart, that they think Williams ought to have lost. No layman would say so; and I suspect any lawyer from France or Germany would be amazed to hear it seriously argued.

On the other hand, is an attack on Williams an attack on consideration? I'd say no. The real problem is that, although the consideration requirement started out as a doctrine about creating obligations (with powerful arguments in its favour), English lawyers have always blithely assumed that it must extend to altering, canceling or modifying obligations (as in Williams, and incidentally as in Foakes). But this certainly isn't true as a matter of logic, and it seems to me that there are good practical reasons for making it easier to modify existing obligations than to create entirely new ones. Once accept this, and Williams and consideration can happily coexist.

It's also worth noting that the Romans realised something like this 2000 years ago. Although they didn't have consideration, they had some pretty strict formal requirements for creation of contractual liability. But for canceling an existing liability? Feel free (says the Roman): all you need to do this is a pactum de non petendo (a.k.a. an entirely informal agreement in any form).

Andrew

Jason Neyers wrote:

Dear Colleagues:

I have already informed Mr. Adrian that the ODG is not a forum for getting answers for essay questions but for serious discussion of the law.

With that in mind, and although this would be a minority position (possibly of 2), I think that the decision in Williams v Roffey Bros is a conceptual disaster.

What are the problems?  First, it is inconsistent with binding authority (such as Foakes v Beer) and the whole line of cases dealing with pre-existing duty.   

Second, the pre-existing duty doctrine is one that is conceptually sound: in a legal system where one needs to pay a price to have a promise enforceable it makes sense that something that is already the entitlement of the other party cannot count as a price.

Third, the dual concepts deployed by the court of duress and practical benefit do not fit together as an integrated whole. If there is no duress why would we care if there was a practical benefit (where was the practical benefit in Hamer v Sidway?). Likewise, if there is a practical benefit why should we care if there is duress, the promise is beneficial for you.

Fourth, on one view the concepts deployed lead to an infinite regression: if it is a practical benefit to have actual performance, since it is always a possibility that a legally binding promise might be breached, how is this solved by having a second legally binding promise? In essence, it is applying social science (statistical) reasoning to what is a normative non-statistical question:  do I have a right to performance and you the concomitant duty.

In the end, the rightness or wrongness of Roffey is tied to consideration. A serious attack on the pre-existing duty doctrine is a serious attack on the doctrine of consideration – they stand or fall together.

Moreover, the result in Williams v Roffey cannot be saved by the application of promissory estoppel, because there appears to be no detriment suffered by the promise, and according to the finest legal minds who take coherence seriously (i.e. not Lord Denning), detriment is a requirement of promissory (and almost all) estoppels.  

--  
Andrew Tettenborn MA LLB
Bracton Professor of Law
University of Exeter, England

Tel:                  01392-263189    /   +44-392-263189 (outside UK)
Cellphone:       07870-130528   /   +44-7870-130528 (outside UK)
Fax:                 01392-263196    /   +44-392-263196 (outside UK)

Snailmail:   School of Law,
                   University of Exeter,
                   Amory Building,
                   Rennes Drive,
                   Exeter EX4 4RJ
                   England

Exeter Law School homepage: http://www.law.ex.ac.uk   

My homepage: http://www.law.ex.ac.uk/staff/tettenborn.shtml

LAWYER, n. One skilled in circumvention of the law (Ambrose Bierce, 1906).

<<<< Previous Message  ~  Index  ~  Next Message >>>>>