I have to confess to not having read Brudner’s piece, but his
argument, at least as reproduced below, as to why promises under seal
are enforced strikes me as circular. What executed gift, what ‘title’
(a woefully inadequate word to describe anything) is given to you when
I sign a deed promising to paint your house? No ‘title’ at all, except
an ‘entitlement’ in you to sue me if I don’t. But to say that you have
a right to sue me is not an explanation /why /you have a right to sue
me, and it is the /why /we’re trying to answer.
Bill Swadling
*From:* Jason Neyers [mailto:jneyers@uwo.ca]
*Sent:* Tuesday, November 25, 2008 3:31 PM
*To:* Stephen Smith, Prof.
*Cc:* obligations@uwo.ca; wingfield@weirfoulds.com;
a.m.tettenborn@exeter.ac.uk; obligations@uwo.ca
*Subject:* ODG: Roffey Bros
Why can't the civilians be wrong? The point is not that their law of
contract does not work in practice (a rule requiring me to cut my
finger for a drop of blood to make promises binding would work in
practice) but that they haven't realized the necessity for
consideration that is implicit in the concept they are using. One
possibility for this failure would be that the civilians are not
dealing solely with obligations created by justice in their civil
codes and are mixing concerns of justice and virtue: this might
explain why the rules between the two systems are different on certain
issues. For example, the existence of /negotiorum /gestorum ///and the
ability to rescind gifts for gross ingratitude would be examples of
rules that are more readily explainable on the grounds that the civil
law is enforcing a duty of gratitude rather than one of justice. /
/ /
/Why does the common law enforce promises under seal? Might I suggest
that the best understanding of this phenomena is not the one given by
Fuller but rather that given by Brudner (one which my students find
comprehensible, /*, *“Reconstructing Contracts” (1993) 43 U.T.L.J. 1
at 34-35/). As he argues:/
/ /
The fact that promises under seal are binding without consideration
has led many to surmise that consideration must be a functional
substitute for a seal. If the purpose of the seal is to give evidence
of an intention to beget legal consequences or to encourage careful
deliberation, then the doctrine of consideration must have this
purpose as well. And then it is a short step to the conclusion that
many things (such as a signed writing) besides consideration may
perform the evidentiary or cautionary function, so that the bargain
requirement begins to look like a fetish if insisted upon without
regard to the contextual features that might make it superfluous.
Taken to its extreme, this reasoning issues in a proposal to redefine
consideration to mean any good reason for enforcing a promise, of
which the existence of a bargain is only one.
The flaw in this reasoning is the assumption that consideration and
the seal are interchangeable means by which to test the legal
seriousness of a promise. Those who start from this premise forget
that the enforcement of promises in an action for debt long predates
the writ of /assumpsit/ from which the modern action for breach of
contract derives; and they forget too that promises under seal are
enforceable only upon delivery to the donee. These phenomena suggest
that the enforcement of promises under seal rests on the theoretical
foundations different from that of enforcement of promises /per se/.
In fact, promises under seal are enforced not as executory promises
but as executed gifts. A gift does not pass title to the donee until
delivered, but the delivery of a sealed deed of gift counts as a
symbolic delivery of the object. In the same way, a promise signed,
sealed, and delivered passes possessory title to the donee, and the
court enforces the title.
Stephen Smith, Prof. wrote:
Jason is right that consideration itself does not function as a
formality (at least in a typical agreement). But the consideration
/rule /may nonetheless still be best explained on ‘formal’ grounds.
The basic effect of the rule is that someone who wants to make a
binding gratuitous promise must either make the promise as a deed or
recast it as an exchange for nominal consideration. Given that
gratuitous promises, and in particular donative promises, raise
potential questions about whether the promise truly intended to be
bound, acted seriously, etc., (for all the reasons Fuller outlines in
‘Consideration and Form’), it is perfectly understandable that the
courts might want to require a formality for such promises—which is
exactly the effect of the consideration /rule./. This explanation fits
well with /Roffey /because where a gratuitous promise is made in the
context of an ongoing contractual relationship the concerns about
intent to be bound, etc., that such promises normally raise arguably
do not arise. This is not to saythat all applications of the
consideration rule can be explained on this ground. There are no doubt
some gratuitous promises (aside from variations) that, like
variations, do not raise intent issues but to which the rule still
applies. The consideration rule was not introduced into the law as a
formality, and no lawmaker starting from scratch would re-introduce it
for this purpose. It is much simpler to legislate that gratuitous
promises, or at least donative promises, must be in a deed, or
whatever (which is precisely what civilian systems do wrt donative
promises). Nonetheless, the formal explanation of consideration may be
the best explanation possible of an imperfect doctrine.
Benson’s Hegelian justification for consideration (which has also been
developed at length by Alan Brudner in an article and in his book) is
noteworthy in that it is the only explanation for consideration that I
am aware of that makes consideration an absolutely central and
necessary part of contract law. But as Ken notes, this feature is also
its most obvious drawback: if the doctrine is so fundamental, how is
it that civil law manages without it (and why does the common law
enforce gratuitous promises under seal)? The other problem with the
Hegelian explanation is that it is, with respect, incomprehensible. By
this I do not mean that Benson and Brudner’s accounts are poorly
written; to the contrary, they are (like all of their work), elegant
and deeply sophisticated accounts. What I mean is that it is
impossible (for me anyway) to explain their accounts without basically
just reproducing the entire hegelian structure, terminology, etc. I
have tried many times both when teaching and in my writing to describe
the theory in a way that an intelligent judge or lawyer would
understand and never succeeded. I can, of course, simply reproduce the
Hegelian structure to show how hegel arrives at consideration (though
this takes a long time), but at the end readers and students
invariably find themselves confused; they want the Hegelian ideas
explained using language and concepts that relate to their experience
and which they can then understand. I have never been able to do this
and have never read anyone who can do it. Die-hard Hegelians (and
Kantians) might not take this methodological point as a genuine
criticism, but for me it counts against any account of the law if that
account cannot be understood by a reasonably intelligent judge, etc.
Cheers
Steve
Stephen A. Smith
Professor & William Dawson Scholar
Faculty of Law, McGill University
3674 Peel St.
Montreal, Quebec H3A 1W9
1-514-398-6633
fax: 1-514-398-3233
------------------------------------------------------------------------
*From:* Jason Neyers [mailto:jneyers@uwo.ca]
*Sent:* Tuesday, November 25, 2008 7:45 AM
*To:* David McLauchlan
*Cc:* Angela Swan; michael furmston; wingfield@weirfoulds.com
<mailto:wingfield@weirfoulds.com>; a.m.tettenborn@exeter.ac.uk
<mailto:a.m.tettenborn@exeter.ac.uk>; obligations@uwo.ca
<mailto: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>
<mailto:David.McLauchlan@vuw.ac.nz>
Date: Monday, November 24, 2008 11:24 pm
Subject: RE: ODG: Roffey Bros
To: Angela Swan <aswan@airdberlis.com> <mailto:aswan@airdberlis.com>,
michael furmston <michaelfurmston@hotmail.com>
<mailto:michaelfurmston@hotmail.com>, jneyers@uwo.ca
<mailto:jneyers@uwo.ca>, wingfield@weirfoulds.com
<mailto:wingfield@weirfoulds.com>
Cc: a.m.tettenborn@exeter.ac.uk <mailto:a.m.tettenborn@exeter.ac.uk>,
obligations@uwo.ca <mailto: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
<mailto:jneyers@uwo.ca>;
wingfield@weirfoulds.comCc: <mailto:wingfield@weirfoulds.comCc:>
a.m.tettenborn@exeter.ac.uk <mailto:a.m.tettenborn@exeter.ac.uk>;
obligations@uwo.caSubject: <mailto: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 <mailto:jneyers@uwo.ca>;
wingfield@weirfoulds.com <mailto:wingfield@weirfoulds.com>
Cc: a.m.tettenborn@exeter.ac.uk
<mailto:a.m.tettenborn@exeter.ac.uk>; obligations@uwo.ca
<mailto: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 <mailto:jneyers@uwo.ca>; wingfield@weirfoulds.com
<mailto:wingfield@weirfoulds.com>
Cc: a.m.tettenborn@exeter.ac.uk
<mailto:a.m.tettenborn@exeter.ac.uk>; obligations@uwo.ca
<mailto: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 <mailto:jneyers@uwo.ca>
Subject: Re: ODG: Roffey Bros
To: WINGFIELD@WEIRFOULDS.COM <mailto:WINGFIELD@WEIRFOULDS.COM>
CC: A.M.Tettenborn@exeter.ac.uk
<mailto:A.M.Tettenborn@exeter.ac.uk>; obligations@uwo.ca
<mailto: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> <mailto:jneyers@uwo.ca>
To: Andrew Tettenborn <A.M.Tettenborn@exeter.ac.uk>
<mailto:A.M.Tettenborn@exeter.ac.uk>
Cc: obligations@uwo.ca <mailto:obligations@uwo.ca>
<obligations@uwo.ca> <mailto: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>
<mailto:bashaijadrian@yahoo.com>
Date: Thursday, November 20, 2008 5:53 pm
Subject: need some help guys
To: obligations@uwo.ca <mailto: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>
<mailto:bashaijadrian@yahoo.com>
Date: Monday, November 17, 2008 2:46 am
Subject: joining dicussion group
To: jneyers@uwo.ca <mailto: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).
________________________________
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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