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>
>
> >
Greetings, > >
> >
I
> should have thought that there must much evidence of such personal judicial “intuition”
> in the judgments of Lord Denning; especially that he would “then think of
> reasons to support [his] intuition”. > >
> >
Best
> wishes, > >
> > > >
Louis Joseph > >
Barrister > >
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> recipient(s) named above and may contain information that is privileged, lawyer
> work product or otherwise exempt from disclosure under applicable law. > > > >
> > > >
> >
From: michael furmston
> [mailto:michaelfurmston@hotmail.com]
>
> Sent: 26 November 2008 08:41
>
> To: jneyers@uwo.ca
>
> Cc: obligations@uwo.ca
>
> Subject: RE: ODG: Roffey Bros > > > > > >
> >
I do not think it is the intuition of the
> man in the street that counts but the trained intuition of the judge
>
> who has spent 30 or 40 years being a competent lawyer.
>
> I cannot of course prove it and I do not know how I would try but I have come
> more and more to think that in a substantial number of casesjudges decide
> intuitively and then think of reasons to support their intuition
>
> All best wishes
>
> Michael
>
>
>
> > >
>
>
>
> > >
>
> Date: Mon, 24 Nov 2008 07:45:00 -0500
>
> From: jneyers@uwo.ca
>
> Subject: ODG: Roffey Bros
>
> To: michaelfurmston@hotmail.com
>
> CC: obligations@uwo.ca
>
>
>
> I don't understand why everyone is caught up on what is intuitive. Surely the
> common law is counter-intuitive from common wisdom in its most basic
> distinction between liability and no liability. Most people (untrained in law)
> think that one should be liable for failing to save drowning babies in
> puddles, that the person who expends the most effort should be awarded the
> property in a captured animal, and that payments mistakenly made
> into another's account are unrecoverable since its the
> payors fault, all of these are of course not the law. This is
> one area where the UK (and now NZ courts) need more juris and
> less prudence.
>
>
>
> Remembering something longer, still doesn't make it coherent (and without
> remembering our failures we are doomed to repeat them (or so the mantra of
> history teachers go).
>
>
>
> Cheers,
>
>
>
> ----- Original Message -----
>
> From: michael furmston <michaelfurmston@hotmail.com>
>
> Date: Monday, November 24, 2008 3:28 am
>
> Subject: RE: ODG: Roffey Bros
>
> To: jneyers@uwo.ca, wingfield@weirfoulds.com
>
> Cc: a.m.tettenborn@exeter.ac.uk, obligations@uwo.ca
>
>
>
> >
>
>
>
>
>
> >
>
> >
>
> >
>
> >
> >
>
>
>
>
> > 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).
>
> > > >
>
> >
>
> >
>
>
> >
Win £1000 John Lewis shopping sprees with
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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
>
>
>
>
>
>
> >
>
>
>
> > >
Win
> £1000 John Lewis shopping sprees with BigSnapSearch.com Search
> now > >
>
>
>
> > > > >
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