----- Original Message -----
From: Jason Neyers
To: Andrew Tettenborn
Sent: Fri Nov 21 13:01:17 2008
Subject: Re: ODG: Roffey Bros
Dear Andrew:
I would say as a matter of logic consideration must be necessary for any modification of a contractual obligation except perhaps for unilateral abandonment (if such a thing is possible in contract law). Why should the promise of the extra money be binding in Roffey? The promisor only has an obligation to pay X not X plus Y. If consideration isn't needed for Y, then why is it needed for X in the first place? The practical reasons you allude to are arbitrary, and make contract law incoherent, as Cardozo once said:
Some courts have drawn a distinction between the formation of the contract and the regulation of performance. The distinction has been rejected in many jurisdictions … I think we should reject it now … I think it is inadequate to say that oral changes are effective if they are slight, and ineffective if they are important. Such tests are too vague to supply a scientific basis of distinction … The field is one where the law should hold fast to fundamental conceptions of contract and of duty, and follow them with loyalty to logical conclusions.
So I would argue that you are confusing prudence and logic. So I still think that a serious attack on pre-existing duty is an attack on consideration.
The Roman law of contract, in this respect (and others) was not a beacon of coherence, see Hegel's discussion in Philosophy of Right, § 79.
