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Sender:
Gordon Goldberg
Date:
Mon, 29 Nov 1999 14:25:54
Re:
Archer: the classification of restitution claims

 

Thank you for this answer. As at present advised and so with two reservations, I respectfully accept everything in it. I readily concede that both reservations may be mere, but I hope harmless, pedantries.

1. If consideration consists of a promise and the promise is not fulfilled then, in my respectful submission, the promise has failed and, with it, the consideration. 2. I regret that I cannot recall, and I have been unable to find, Dr Dannemann's reference to 'failure of consideration' in the case of a gratuitous contract. I beg your pardon if, consequently, I have not appreciated the significance of your examples. To me they illustrate that what the common law regards as sufficiency of 'consideration' varies according to the circumstances. Only the promisee's act or forbearance, or his promise to act or forbear, at the request of the promisor will do for a simple contract. However, the covenantor's seal suffices in a specialty and the entry of judgment in Lord Archer's contract of record. Thus, in my respectful submission, you have throughout used 'consideration' in the one sense, rather than in two or more. In the latter case there would have been two or more words with different meanings, but the same form: i.e., two or more homonyms.

 


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