Date: Mon, 7 Apr 2008 14:54

From: Adam Kramer

Subject: Contract, Consideration and Tort Duties

It must be right that in the dentist case there is a promise to do the dental work and an implied promise to take reasonable care in the conduct of any dental work, and only the latter is matched by a concurrent tortious duty.

More interesting for the consideration rule is the situation where the only contractual duty is the implied one that is coterminous with the tortious duty. How about a dentist whose diary is pretty full and so says “sit in this chair, and I’ll do the work if I have time and feel like it, but I may have to break off at any point leaving it incomplete, and you’ll have to just pay by the hour” and then in the end (because he does have time) does in fact do some dental work on the patient. There is no obligation to do the work, the dentist just does what he or she does, but there is an implied duty to take reasonable care. Can it be said the implied promise to take reasonable care is of no consideration value? (Or is a contractual claim worth more than a tortious claim for some reason, although is that a circular argument since the promise is not worth more, it is only the contract that might be, and there is only a contract if there is found to be consideration?)

Further, even if there is no consideration for the promise to take reasonable care, the actual performance of the work (i.e. having someone drill your teeth) is of value (to which a quantum meruit claim would give effect if the contract was unenforceable), i.e. the dentist having taken the choice to engage with the teeth and thereby assume the tortious duties/the hole in the teeth or the filling of such a hole. Or is there something wrong with this as contractual consideration?

Adam Kramer
3 Verulam Buildings, Gray’s Inn, London

-----Original Message-----
From: Kelvin F.K. Low
Sent: 07 April 2008 13:44
To: Jason Neyers
Subject: Re: ODG: Contract, Consideration and Tort Duties

I can't cite any authorities off the top of my head and am not in the office so here goes ...

I think the flaw in the argument lies in the assumption that there is no consideration for the case of the dentists because the particular promised obligation is already owed. In fact, both dentists do provide consideration as both promise to extract your teeth, something they were not obliged to perform under the law. Perhaps more to the point, the more important question is whether you have provided consideration and clearly you have as you promised to pay £12,000 to Fred. 

According to Treitel at least, the true question is whether a promise(s) is/are supported by consideration, not whether the contract is supported by consideration. So in your first example, whilst I may not sue you for the £100 because I have not provided any consideration by promising not to defame you, it is arguable that you have provided consideration for my promise because you have promised to pay me £100. Which raises the interesting question whether the answer to the question whether there is a contract is always a yes and no response. In the context of mistake (of the unilateral variety where one party mistakes the terms of the offer of the other party and accepts, and the other knows of the mistake), I think the answer must be yes and no depending on whose point of view one takes. I suppose that may well be true also of your first example.

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