Dear all,

I am greatly entertained and enlightened by the various directions on which

debates on this list have wandered this week, and especially so by Andrew

Robertson and David McLauchlan's replies to my speculations about consideration

in Williams v Roffey. Neither seems prepared to buy my argument that the

consideration in that case should be seen as consisting in the receipt of the

contractual performance _in the new circumstances_.

Andrew objected that I over-stated Hartley v Ponsonby and more fundamentally

that in Williams v Roffey the change in circumstances did not affect the

carpenter's obligation to perform, whilst David objected that there were

different circumstances at the time of the new agreement in Stilk v Myrick as

well.

In Stilk (http://www.bailii.org/ew/cases/EWHC/KB/1809/J58.html) Lord

llenborough said that before they had sailed from London, the sailors "had

undertaken to do all that they could under all the emergencies of the voyage.

They had sold all their services till the voyage should be completed." That

being so, the contract already provided for the eventuality which occurred;

moreover, it was still factually possible for the remaining sailors to get the

ship home. Hence, unlike David, I don't think that there were relevant new

circumstances on which to found consideration.

On the other hand, in Williams v Roffey, the contract did not provide for the

eventuality of the recessionary change in background economic circumstances,

and it was no longer factually possible for the carpenter to complete his

performance. Hence, although I agree with Andrew that the circumstances did not

affect the carpenter's obligation to perform, I think that they did affect his

ability to perform, and that, as consequence, there were indeed new

circumstances on which to found consideration.

In other words, my focus was not on the existing legal obligation (which is

common to Stilk v Myrick and Williams v Roffey) but on the ability to perform

that obligation in the changed circumstances, and where that obligation could

not be performed in the changed circumstances without the renegotiation of the

contract, there is good consideration for that renegotiated contract.

For what it's worth, I take Hartley v Ponsonby to illustrate this point: when 19

out of 36 crew deserted, it was no longer possible to sail the ship - and the

contract (re)negotiated in the new circumstances was thus supported by

consideration. By the by, I suppose it is no defence to say that, if I did

overstate Hartley, it's ok, since Denning used to do things like that too?

All the best,

Eoin.

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Dr Eoin O'Dell                                     main: +353-1-896 1125

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