Well, I meant it is all good "teaching" fun, but serving the serious purpose, inter alia, of being an excellent mechanism for getting students to see that the requirement of consideration has become fundamentally flawed and that nowadays, in the words of Russell LJ, the courts are "more ready to find its existence so as to reflect the intention of the parties to the contract where the bargaining powers are not unequal and where the finding of consideration reflects the true intention of the parties".  The challenge of finding a better basis for determining what promises to enforce and what ones not to has of course been faced by scholars on countless occasions for more than a century and will undoubtedly continue to be faced for another century, but the chances of a high appellate court discarding the requirement of consideration are about as high as Osama Bin Laden converting to Christianity!

 

David

________________________________

From: Angela Swan [mailto:aswan@airdberlis.com]

Sent: Tue 25/11/2008 2:48 PM

To: David McLauchlan; michael furmston; jneyers@uwo.ca; wingfield@weirfoulds.com

Cc: a.m.tettenborn@exeter.ac.uk; obligations@uwo.ca

Subject: RE: ODG: Roffey Bros

David, it's not "all good fun"; it's far too important for that.

The simple argument that because the promise given for consideration is enforceable, the promise not given for consideration is unenforceable is false. When faced with an argument over the enforcement of what Karl Llewellyn called a "going-transaction adjustment" the choice between enforcement and a refusal to enforce is not symmetrical; it's far more serious not to enforce than it is to enforce when enforcement will protect the parties' reasonable expectations-the expectations they shared when the modification was made.  Of course, there may be circumstances, explored for instance in Pao On, where there are substantive reasons not to enforce a promise, but the mere absence of technical consideration is not a good reason.

Michael's account of his conversation with Glidewell illustrates the judicial recognition of the asymmetrical choice I refer to.

The challenge of scholars is to find a better basis for determining what promises to enforce and what ones not to. It is clear that the kind of sterile arguments made over the presence or absence of consideration is unhelpful.

Angela Swan

-----Original Message-----

From: David McLauchlan [mailto:David.McLauchlan@vuw.ac.nz <mailto:David.McLauchlan@vuw.ac.nz> ]

Sent: Monday, November 24, 2008 7:59 PM

To: michael furmston; jneyers@uwo.ca; wingfield@weirfoulds.com

Cc: a.m.tettenborn@exeter.ac.uk; obligations@uwo.ca

Subject: RE: ODG: Roffey Bros

Ah, Michael, wish I had been at that lunch!  I could have asked how he found support for his "principle" in Williams v Williams, Ward v Byham and Pao On, and why he cited the wholly irrelevant passages from the latter dealing with public policy, "cunningly" leaving out the bit in which the Privy Council explicitly endorsed Stilk v Myrick as based on want of consideration!

As to the position in NZ, the law is in a right mess.  In Antons Trawling [2003] 2 NZLR 23 the CA went so far as to say that a contractual variation that is "acted on" is binding without consideration in the absence of duress or "policy" (!!) reasons for setting it aside.  More recently, however, in Fuel Expresso [2007] 2 NZLR 651 a differently constituted CA, without referring to Antons,  thought it axiomatic that consideration was required.  As Michael says, all good fun.  And wonderful stuff for teaching students not to take what judges say too seriously.

Kind regards

David

________________________________

From: michael furmston [mailto:michaelfurmston@hotmail.com <mailto:michaelfurmston@hotmail.com> ]

Sent: Mon 24/11/2008 9:23 PM

To: jneyers@uwo.ca; wingfield@weirfoulds.com

Cc: a.m.tettenborn@exeter.ac.uk; obligations@uwo.ca

Subject: RE: ODG: Roffey Bros

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 <http://www.law.ex.ac.uk/>  My homepage:

> > > http://www.law.ex.ac.uk/staff/tettenborn.shtml <http://www.law.ex.ac.uk/staff/tettenborn.shtml>  

> > >

> > >

> > >

> > >

> > >

> > > LAWYER, n. One skilled in circumvention of the law (Ambrose

> > > Bierce,

> > 1906).

> >

________________________________

Win £1000 John Lewis shopping sprees with BigSnapSearch.com Search now <http://clk.atdmt.com/UKM/go/117442309/direct/01/ <http://clk.atdmt.com/UKM/go/117442309/direct/01/> >