Jason,
As a commercial lawyer, I am always
deeply suspicious of legal arguments that are based on either trivial examples
or far-fetched ones. It is, for example, unhelpful to discuss the third party
beneficiary rule by using an example where A promises B that she, A, will mow
C’s lawn; those are not the kind of
facts that cause problems. It is equally unhelpful to deal with
promissory estoppel in the context of manifestly unpleasant if not dishonest
marking practices.
The principal problem that the
discussion of consideration over the last few days has disclosed is the view of
many academics that issues of consideration are the same whether the question is
the enforcement of a gratuitous promise or a going-transaction adjustment,
i.e., the modification of an existing contractual arrangement. No
merchant, to use a generic term to refer to any business entity, considers that
modifications are the same or present the same issues as the making of a new
deal; the parties are in a deal and modifications or adjustments happen all the
time, particularly in one that is more than a single transaction. To threaten a
modification with unenforceability will catch merchants by surprise—duress, etc.
aside.
The messy features of the law of contract, whether they are of the
application of the doctrine of consideration, the third party beneficiary rule or mistake, are directly caused by the fact
that judges simply will not do what (some version of) the traditional rules
might say they should because the results that they would be forced to reach
would be unpalatable and, of course, they have sought to avoid unpalatable results for as long
as there have been judges. Michael
Jones exactly and perfectly explained and described what a conscientious judge
should do. It is not only futile but wrong to view the law, as you appear to, as
if it did not have lacunae or uncertainties which can be exploited to reach
satisfactory results. As Michael suggested, the
goal lies in changing the rules to improve the chances of reaching the
satisfactory result, not in making it more mechanical. Denning saw this and
strove to enhance the opportunities for judges to be more honest; the fact that
he wasn't always successful doesn't mean that he did not try.
The law is for something; it’s not, as David
McLauchlan suggested, a game for anyone, academics, lawyers or even law students
and playing silly consideration games does nothing to reduce the probability
that (the solicitor of) some party will not be moved to try one on. It's the opportunity to try one on that has
characterized much of the doctrine of consideration over the last 150
years.
Angela Swan
Dear Colleagues:
I would be interested in your views on the
following (which is related to our earlier discussions but abstracted away for
them or from any particular judge past or present). Let’s
assume that your faculty has a grading system that dictates that you should give
marks in the following manner. If you consider the work to be excellent it is to
be given an A, if it is merely good a B, if it is competent a C, and if it is
unsatisfactory an F. You have read a student’s exam (which is
indicated by only a number so it is anonymous) and given it a B because you
honestly believe that the work is merely good and not excellent. The student
comes to you in your office.
Situation One: The
student explains that she comes from a poor family and is in danger of losing
her scholarship if she does not receive an A in your course.
If she loses her scholarship she will be unlikely to continue on and to
finish her law degree. She asks if you will re-read her exam. You re-read her
exam and conclude that in your best judgment it is a B at the lower end of the
scale. Because of her situation you give her an A anyway.
Situation Two: The
student is one of your nicest students, the kind who is always agreeable in
class, asks helpful questions, gives very good answers when prompted, etc; the
kind you would have thought would get an A. She asks if you will re-read her
exam. You re-read her exam and conclude that in your best judgment it is a B at
the lower end of the scale. You give her an A anyway since she is such a nice
kid.
Situation Three:
The student is generally a good student but has lawyers for parents and
is very aggressive in asserting her claims. In fact, you know that she will
appeal her mark if she is not given an A. She has appealed four times before and
lost three of these times. She asks if you will re-read her exam. You re-read
her exam and conclude that in your best judgment it is a B at the lower end of
the scale. You give her an A anyway because you know that although you will most
likely win the appeal, preparing for the appeal will eat up a week or two you
could better use as a vacation.
Some questions:
- In your opinion is the marker acting appropriately in any
of these cases in giving an A?
- Could the employer, other faculty members or other students
be legitimately aggrieved with the marker?
- Would it be fair to say that the marker is not marking in good faith?
- If the marker told the other students what he had done would that diminish
their faith in the system of marking as a whole?
My intuitive answer is that: (1) the marker is
acting inappropriately, (2) the employer, colleagues and other students would
have a legitimate grievance, (3) the marker is not marking in
good faith since they are deliberately deviating from the rules and introducing
factors which appear irrelevant into their decision making process; & (4) if
this were known to the other students this would cause them to be (corrosively)
skeptical of the whole marking system and the marks they get from everyone else.
The final point, and this is where many
might disagree (if they don’t already) is that the situation of the marker is
analogous to that of a first instance or intermediate appellate court judge in
the face of a clearly binding precedent of the highest appellate court (in their
jurisdiction).
To use a Canadian example, you are faced
with a case where all the requirements for a promissory estoppel are met (clear
promise, reasonable reliance, which is massively detrimental, no inequity, etc)
except that the plaintiff is trying to use the doctrine as a cause of action, a
move prevented by binding authority (see eg, Canadian Superior Oil,
[1970] S.C.R. 932). My intuitive answer would be that a trial or intermediate
appellate court judge, if they honestly could find no relevant reason to
distinguish the case, would have to dismiss the plaintiff’s claim even if she
thought that justice or fairness or social policy would be better served by
allowing the claim.
Thoughts?
--
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