Date: Fri, 21 Nov 2008 12:54

From: Jason Neyers

Subject: Roffey Bros

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 Roffey Bros is a conceptual disaster.

What are the problems?  First, it is inconsistent with binding authority (such as Foakes v Beer) 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 concomitant 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 Roffey cannot be saved by the application of promissory estoppel, because there appears to be no detriment suffered by the promise, and according to the finest legal minds who take coherence seriously (i.e. not Lord Denning), detriment is a requirement of promissory (and almost all) estoppels.  

Sincerely,

----- Original Message -----
From: Bashaija Adrian
Date: Thursday, November 20, 2008 5:53 pm
Subject: need some help guys

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 opinions and cross reference ...

QN. has the case of Williams v. Roffey Bros & Nicholls [1991] 1 QB 1 in the United Kingdom a positive or negative development to the principle of consideration? and to what extent?

Thanks a lot guys this forum is brilliant.   

-- 
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

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