| From: | Jason Neyers <jneyers@uwo.ca> |
| To: | michael furmston <michaelfurmston@hotmail.com> |
| CC: | obligations@uwo.ca |
| Date: | 24/11/2008 15:00:27 UTC |
| Subject: | Re: ODG: Roffey Bros |
As an aside, what consideration did you have in mind for Roffey Bros?
Jason Neyers
Associate Professor of Law &
Cassels Brock LLP Faculty Fellow in Contract Law
Faculty of Law
University of Western Ontario
N6A 3K7
(519) 661-2111 x. 88435
michael furmston wrote:
> The discussion of Williams v Roffey reminds me that soon after the
> decision I was sitting next to Iain Glidewell at lunch at Gray's inn
> and we talked about the case.It was clear that he had not encountered
> consideration since he left law school and had a strong intuitive
> perception that the deal should be upheld.
> It would have been easily possible to massage the facts so as to
> satify the consideration testwhich would have made the case much less
> fun.
> The Roman law of contract will still be discussed after Hegel is forgotten
> All best wishes
> Michael
>
> > Date: Fri, 21 Nov 2008 15:28:29 -0500
> > From: jneyers@uwo.ca
> > Subject: Re: ODG: Roffey Bros
> > To: WINGFIELD@WEIRFOULDS.COM
> > CC: A.M.Tettenborn@exeter.ac.uk; obligations@uwo.ca
> >
> > I take the Seavey, Cardozo and Australian line in regard to estoppel so
> > that the doctrine is not about enforcing promises per se but about
> > remedying justified detrimental reliance (like Hedley Byrne). On this
> > view, accepting estoppel does not conflict with the requirement that to
> > make a promise binding fully qua promise you need consideration.
> >
> > Cheers,
> >
> > Jason Neyers
> > Associate Professor of Law &
> > Cassels Brock LLP Faculty Fellow in Contract Law
> > Faculty of Law
> > University of Western Ontario
> > N6A 3K7
> > (519) 661-2111 x. 88435
> >
> >
> >
> > David Wingfield wrote:
> > >
> > > What happened to promissory estoppel?
> > >
> > > ----- Original Message -----
> > > From: Jason Neyers <jneyers@uwo.ca>
> > > To: Andrew Tettenborn <A.M.Tettenborn@exeter.ac.uk>
> > > Cc: obligations@uwo.ca <obligations@uwo.ca>
> > > 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-exisitng 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.
> > >
> > >
> > > Jason Neyers
> > > Associate Professor of Law &
> > > Cassels Brock LLP Faculty Fellow in Contract Law
> > > Faculty of Law
> > > University of Western Ontario
> > > N6A 3K7
> > > (519) 661-2111 x. 88435
> > >
> > >
> > >
> > > Andrew Tettenborn wrote:
> > > > 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 Rofey Bros
> > > >> is a conceptual disaster.
> > > >>
> > > >> What are the problems? First, it is inconsistent with binding
> > > >> authority (such as Foakes v Bears) 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 comnicant 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 Rofey cannot be saved by the
> > > >> application of promissory estoppel because there appears to be no
> > > >> detriment suffered by the promisee and according to the finest
> legal
> > > >> minds who take coherence seriously (ie not Lord Denning), detriment
> > > >> is a requirement of promissory (and almost all) estoppels.
> > > >>
> > > >> Sincerely,
> > > >>
> > > >>
> > > >> ----- Original Message -----
> > > >> From: Bashaija Adrian <bashaijadrian@yahoo.com>
> > > >> Date: Thursday, November 20, 2008 5:53 pm
> > > >> Subject: need some help guys
> > > >> To: obligations@uwo.ca
> > > >>
> > > >> > hope you all alright... is there anyone who can bail
> > > >> > me out on this question to top up my understanding, i
> > > >> > have most of it and would like to know your oppinions
> > > >> > and cross reference...
> > > >> >
> > > >> > QN. has the case of WILLIAMS v ROFFEY Bros & NICHOLLS
> > > >> > (1991) 1 QB 1 in the united kingdom a positive or
> > > >> > nagative development to the principle of
> > > >> > consideration? and to what extent?
> > > >> >
> > > >> > thanks alot guys this forrum is brilliant.
> > > >> >
> > > >> > Macus
> > > >> >
> > > >> >
> > > >> >
> > > >> >
> > > >>
> > > >> --
> > > >> Jason Neyers
> > > >> Associate Professor of Law &
> > > >> Cassels Brock LLP Faculty Fellow in Contract Law
> > > >> Faculty of Law
> > > >> University of Western Ontario
> > > >> N6A 3K7
> > > >> (519) 661-2111 x. 88435
> > > >>
> > > >>
> > > >> >
> > > >> >
> > > >> > ---------------------------------
> > > >> > I've signed you up.
> > > >> >
> > > >> > ----- Original Message -----
> > > >> > From: Bashaija Adrian <bashaijadrian@yahoo.com>
> > > >> > Date: Monday, November 17, 2008 2:46 am
> > > >> > Subject: joining dicussion group
> > > >> > To: jneyers@uwo.ca
> > > >> >
> > > >> > > dear Nr Neyers
> > > >> > >
> > > >> > > Hope all is well for you. I have been reading
> > > >> > throught
> > > >> > > the posts on the discussion group and have picked a
> > > >> > > keen interest in joining. I dont know how its done
> > > >> > but
> > > >> > > I am a second year Law student in the United
> > > >> > Kingdom.
> > > >> > >
> > > >> > > Please advise
> > > >> > >
> > > >> > > thank you
> > > >> > > Adrian
> > > >> > >
> > > >> > >
> > > >> > >
> > > >> > >
> > > >> >
> > > >> > --
> > > >> > Jason Neyers
> > > >> > Associate Professor of Law &
> > > >> > Cassels Brock LLP Faculty Fellow in Contract Law
> > > >> > Faculty of Law
> > > >> > University of Western Ontario
> > > >> > N6A 3K7
> > > >> > (519) 661-2111 x. 88435
> > > >> >
> > > >> >
> > > >> >
> > > >> >
> > > >> >
> > > >> >
> > > >> >
> > > >>
> > > >> --
> > > >> Jason Neyers
> > > >> Associate Professor of Law &
> > > >> Cassels Brock LLP Faculty Fellow in Contract Law
> > > >> Faculty of Law
> > > >> University of Western Ontario
> > > >> N6A 3K7
> > > >> (519) 661-2111 x. 88435
> > > >>
> > > > 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,
> > > > cancelling 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 cancelling an existing liability? Feel free (says
> > > > the Roman): all you need to do this is a pactum de non petendo
> (aka an
> > > > entirely informal agreement in any form).
> > > >
> > > >
> > > > Andrew
> > > >
> > > > --
> > > > 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).
> > >
>
>
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