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> The discussion of Williams v Roffey reminds me that soon after the decision I was sitting next to Iain Glidewell at lunch at Gray's inn and we talked about the case.It was clear that he had not encountered consideration since he left law school and had a strong intuitive perception that the deal should be upheld.
>
> It would have been easily possible to massage the facts so as to satify the consideration testwhich would have made the case much less fun.
>
> The Roman law of contract will still be discussed after Hegel is forgotten
>
> All best wishes
>
> Michael
>
> > Date: Fri, 21 Nov 2008 15:28:29 -0500
> > From: jneyers@uwo.ca
> > Subject: Re: ODG: Roffey Bros
> > To: WINGFIELD@WEIRFOULDS.COM
> > CC: A.M.Tettenborn@exeter.ac.uk; obligations@uwo.ca
> >
> > I take the Seavey, Cardozo and Australian line in regard to estoppel so
> > that the doctrine is not about enforcing promises per se but about
> > remedying justified detrimental reliance (like Hedley Byrne). On this
> > view, accepting estoppel does not conflict with the requirement that to
> > make a promise binding fully qua promise you need consideration.
> >
> > Cheers,
> >
> > 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
> >
> >
> >
> > David Wingfield wrote:
> > >
> > > What happened to promissory estoppel?
> > >
> > > ----- Original Message -----
> > > From: Jason Neyers <jneyers@uwo.ca>
> > > To: Andrew Tettenborn <A.M.Tettenborn@exeter.ac.uk>
> > > Cc: obligations@uwo.ca <obligations@uwo.ca>
> > > Sent: Fri Nov 21 13:01:17 2008
> > > Subject: Re: ODG: Roffey Bros
> > >
> > > Dear Andrew:
> > >
> > > I would say as a matter of logic consideration must be necessary for any
> > > modification of a contractual obligation except perhaps for unilateral
> > > abandonment (if such a thing is possible in contract law). Why should
> > > the promise of the extra money be binding in /Roffey/? The promisor only
> > > has an obligation to pay X not X plus Y. If consideration isn't needed
> > > for Y, then why is it needed for X in the first place? The practical
> > > reasons you allude to are arbitrary and make contract law incoherent, as
> > > Cardozo once said:
> > >
> > > "Some courts have drawn a distinction between the formation of the
> > > contract and the regulation of performance.The distinction has been
> > > rejected in many jurisdictions. … I think we should reject it now. …
> > > I think it is inadequate to say that oral changes are effective if
> > > they are slight and ineffective if they are important. Such tests
> > > are too vague to supply a scientific basis of distinction. … The
> > > field is one where the law should hold fast to fundamental
> > > conceptions of contract and of duty, and follow them with loyalty to
> > > logical conclusions."
> > >
> > > So I would argue that you are confusing prudence and logic. So I still
> > > think that A serious attack on pre-exisitng duty is an attack on
> > > consideration.
> > >
> > > The Roman law of contract, in this respect (and others) was not a beacon
> > > of coherence, see Hegel's discussion in /Philosophy of Right, /§ 79.
> > >
> > >
> > > 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
> > >
> > >
> > >
> > > Andrew Tettenborn wrote:
> > > > Jason Neyers wrote:
> > > >>
> > > >> 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 Rofey Bros
> > > >> is a conceptual disaster.
> > > >>
> > > >> What are the problems? First, it is inconsistent with binding
> > > >> authority (such as Foakes v Bears) 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 comnicant 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 Rofey cannot be saved by the
> > > >> application of promissory estoppel because there appears to be no
> > > >> detriment suffered by the promisee and according to the finest legal
> > > >> minds who take coherence seriously (ie not Lord Denning), detriment
> > > >> is a requirement of promissory (and almost all) estoppels.
> > > >>
> > > >> Sincerely,
> > > >>
> > > >>
> > > >> ----- Original Message -----
> > > >> From: Bashaija Adrian <bashaijadrian@yahoo.com>
> > > >> Date: Thursday, November 20, 2008 5:53 pm
> > > >> Subject: need some help guys
> > > >> To: obligations@uwo.ca
> > > >>
> > > >> > 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 oppinions
> > > >> > and cross reference...
> > > >> >
> > > >> > QN. has the case of WILLIAMS v ROFFEY Bros & NICHOLLS
> > > >> > (1991) 1 QB 1 in the united kingdom a positive or
> > > >> > nagative development to the principle of
> > > >> > consideration? and to what extent?
> > > >> >
> > > >> > thanks alot guys this forrum is brilliant.
> > > >> >
> > > >> > Macus
> > > >> >
> > > >> >
> > > >> >
> > > >> >
> > > >>
> > > >> --
> > > >> 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
> > > >>
> > > >>
> > > >> >
> > > >> >
> > > >> > ---------------------------------
> > > >> > I've signed you up.
> > > >> >
> > > >> > ----- Original Message -----
> > > >> > From: Bashaija Adrian <bashaijadrian@yahoo.com>
> > > >> > Date: Monday, November 17, 2008 2:46 am
> > > >> > Subject: joining dicussion group
> > > >> > To: jneyers@uwo.ca
> > > >> >
> > > >> > > dear Nr Neyers
> > > >> > >
> > > >> > > Hope all is well for you. I have been reading
> > > >> > throught
> > > >> > > the posts on the discussion group and have picked a
> > > >> > > keen interest in joining. I dont know how its done
> > > >> > but
> > > >> > > I am a second year Law student in the United
> > > >> > Kingdom.
> > > >> > >
> > > >> > > Please advise
> > > >> > >
> > > >> > > thank you
> > > >> > > Adrian
> > > >> > >
> > > >> > >
> > > >> > >
> > > >> > >
> > > >> >
> > > >> > --
> > > >> > 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
> > > >> >
> > > >> >
> > > >> >
> > > >> >
> > > >> >
> > > >> >
> > > >> >
> > > >>
> > > >> --
> > > >> 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
> > > >>
> > > > Of course Williams is a conceptual disaster: the argument in the CA
> > > > doesn't hang together, is transparently specious, and wouldn't get
> > > > that many marks if it came from one of our students.
> > > >
> > > > The difficulty is, of course, that it's very difficult for anyone --
> > > > apart perhaps from a participant at a common lawyers' get-together --
> > > > to say, hand on heart, that they think Williams ought to have lost. No
> > > > layman would say so; and I suspect any lawyer from France or Germany
> > > > would be amazed to hear it seriously argued.
> > > >
> > > > On the other hand, is an attack on Williams an attack on
> > > > consideration? I'd say no. The real problem is that, although the
> > > > consideration requirement started out as a doctrine about creating
> > > > obligations (with powerful arguments in its favour), English lawyers
> > > > have always blithely assumed that it /must/ extend to altering,
> > > > cancelling or modifying obligations (as in Williams, and incidentally
> > > > as in Foakes). But this certainly isn't true as a matter of logic, and
> > > > it seems to me that there are good practical reasons for making it
> > > > easier to modify existing obligations than to create entirely new
> > > > ones. Once accept this, and Williams and consideration can happily
> > > > coexist.
> > > >
> > > > It's also worth noting that the Romans realised something like this
> > > > 2000 years ago. Although they didn't have consideration, they had some
> > > > pretty strict formal requirements for creation of contractual
> > > > liability. But for cancelling an existing liability? Feel free (says
> > > > the Roman): all you need to do this is a pactum de non petendo (aka an
> > > > entirely informal agreement in any form).
> > > >
> > > >
> > > > Andrew
> > > >
> > > > --
> > > > Andrew Tettenborn MA LLB
> > > > Bracton Professor of Law
> > > > University of Exeter, England
> > > >
> > > >
> > > > Tel: 01392-263189 / +44-392-263189 (outside UK)
> > > > Cellphone: 07870-130528 / +44-7870-130528 (outside UK)
> > > > Fax: 01392-263196 / +44-392-263196 (outside UK)
> > > >
> > > > Snailmail: School of Law,
> > > > University of Exeter,
> > > > Amory Building,
> > > > Rennes Drive,
> > > > Exeter EX4 4RJ
> > > > England
> > > >
> > > > Exeter Law School homepage: http://www.law.ex.ac.uk
> > > > My homepage: http://www.law.ex.ac.uk/staff/tettenborn.shtml
> > > >
> > > >
> > > >
> > > >
> > > >
> > > > LAWYER, n. One skilled in circumvention of the law (Ambrose Bierce,
> > > 1906).
> > >
>
>
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