The best account of W v R remains Peter Birks's (perhaps not as

characteristically transparently titled) "The Travails of Duress" in the

Lloyd's Quarterly (1990 LMCLCQ I think) - home of the nail in the coffin

metaphor trotted out by above-average students, and pointing out the CA's

unacknowledged debt to Treitel for providing the "practical benefit"

lifeboat.

Gerard McMeel

PS Robert's Inaugural was a corker, and, naturally, deeply unsound.

On Tue, November 25, 2008 1:01 pm, Robert Stevens wrote:

> Those who want to read what I said in my inaugural are welcome to have a

> copy of my lecture, on the condition that it is not read as a polished

> article. It will no doubt come out in Current Legal Problems in due course

> but that won't physically happen until 2010 I expect (despite the title of

> UCL's house journal). Jason has read it (as he says).

>

> FWIIW, I think Williams v Roffey involves a slight of hand by Glidewell LJ

> as he claimed that counsel had conceded that the employer had received a

> 'practical benefit' from the variation. If this had been correct, I have

> no

> problem with the result. I rather doubt whether that was what counsel had

> conceded, reading the argument.

>

> W v R is certainly much less radical than the CA in Collier v Wright

> which,

> on one reading, seems to suggest the overturning of the HL in Foakes v

> Beer

> based on an obiter dictum of a first instance judge, and doesn't require

> any

> benefit to have been conferred, practical or otherwise.

> Robert

>

>   _____

>

> From: Jason Neyers [mailto:jneyers@uwo.ca]

> Sent: 25 November 2008 12:45

> To: David McLauchlan

> Cc: Angela Swan; michael furmston; wingfield@weirfoulds.com;

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

> Subject: Re: RE: ODG: Roffey Bros

>

>

> Dear David & all:

>

> I would argue that consideration is not a formal requirement like the seal

> or notarization at all but rather a

> conceptually necessary part of contract that helps to explain why contract

> law is not a system for the enforcement

> of conventional morality (which would be problematic in a liberal

> democracy)

> and is reflective of the harm

> principle that is embodied in the rest of the common law. The most

> sophisticated argument of this type can

> be found in the work of Peter Benson (see The Unity of Contract Law).

>

> The doctrine of consideration is not primarily about showing an intention

> to

> have legal relations either since

> everyday we enter into situations where there is consideration but there

> is

> no contract

> (I'll walk the dog if you do the dishes).  Alan Brudner and Robert Stevens

> both have excellent discussions

>  which make this point as well (see Rob's inaugural and ?Reconstructing

> Contracts? (1993) 43 U.T.L.J. 1).

>

>

>

> ----- Original Message -----

> From: David McLauchlan <David.McLauchlan@vuw.ac.nz>

> Date: Monday, November 24, 2008 11:24 pm

> Subject: RE: ODG: Roffey Bros

> To: Angela Swan <aswan@airdberlis.com>, michael furmston

> <michaelfurmston@hotmail.com>, jneyers@uwo.ca, wingfield@weirfoulds.com

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

>

>> 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.comCc: a.m.tettenborn@exeter.ac.uk;

>> obligations@uwo.caSubject: 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

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>>

>

> --

> 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

>

>

>

--