If we had s.90 liability (on the detrimental reliance theory of Seavey,
which I think is consistent with CJ, btw) wouldn't business people's
reasonable expectations be protected? No one would suffer loss then if
the operation of the rules of contract law did not meet their
reasonable expectations. Maybe it is just me, but I think it is a weird
argument to say that an ordinary person's views (or the majority view
of ordinary people) as to what the law is should determine the content
of the law, it certainly doesn't do so in standard of care cases in
negligence.
Jason,
As a commercial lawyer, I
am always deeply suspicious of legal arguments that are based on either
trivial examples or far-fetched ones. It is, for example, unhelpful to
discuss the third party beneficiary rule by using an example where A
promises B that she, A, will mow C’s lawn; those are not the kind of facts that cause problems.
It is equally unhelpful to deal with promissory estoppel in the context
of manifestly unpleasant if not dishonest marking practices.
The principal problem that
the discussion of consideration over the last few days has disclosed is
the view of many academics that issues of consideration are the same
whether the question is the enforcement of a gratuitous promise or a
going-transaction adjustment, i.e., the modification of an
existing contractual arrangement. No merchant, to use a generic term to
refer to any business entity, considers that modifications are the same
or present the same issues as the making of a new deal; the parties are
in a deal and modifications or adjustments happen all the time,
particularly in one that is more than a single transaction. To threaten
a modification with unenforceability will catch merchants by
surprise—duress, etc. aside.
The messy features of the
law of contract, whether they
are of the application of the doctrine of consideration, the third party beneficiary rule or mistake, are directly caused by
the fact that judges simply will not do what (some version of) the
traditional rules might say they should because the results that they
would be forced to reach would be unpalatable and, of course, they have sought to avoid unpalatable results
for as long as there have been judges.
Michael Jones exactly and perfectly explained and described
what a conscientious judge should do. It is not only futile but wrong
to view the law, as you appear to, as if it did not have lacunae or
uncertainties which can be exploited to reach satisfactory results. As Michael suggested, the goal lies in
changing the rules to improve the chances of reaching the satisfactory
result, not in making it more mechanical. Denning saw this and strove
to enhance the opportunities for judges to be more honest; the fact
that he wasn't always successful doesn't mean that he did not try.
The law is for something; it’s
not, as David McLauchlan suggested, a game for anyone, academics,
lawyers or even law students and playing silly consideration games does
nothing to reduce the probability that (the solicitor of) some party
will not be moved to try one on. It's
the opportunity to try one on that has characterized much of the
doctrine of consideration over the last 150 years.
Angela Swan
Dear Colleagues:
I would be interested in your views
on the following (which is related to our earlier discussions but
abstracted away for them or from any particular judge past or present).
Let’s assume that your faculty has a grading system that
dictates that you should give marks in the following manner. If you
consider the work to be excellent it is to be given an A, if it is
merely good a B, if it is competent a C, and if it is unsatisfactory an
F. You have read a student’s exam (which is indicated by
only a number so it is anonymous) and given it a B because you honestly
believe that the work is merely good and not excellent. The student
comes to you in your office.
Situation One: The
student explains that she comes from a poor family and is in danger of
losing her scholarship if she does not receive an A in your course.
If she loses her scholarship she will be unlikely to continue
on and to finish her law degree. She asks if you will re-read her exam.
You re-read her exam and conclude that in your best judgment it is a B
at the lower end of the scale. Because of her situation you give her an
A anyway.
Situation Two: The
student is one of your nicest students, the kind who is always
agreeable in class, asks helpful questions, gives very good answers
when prompted, etc; the kind you would have thought would get an A. She
asks if you will re-read her exam. You re-read her exam and conclude
that in your best judgment it is a B at the lower end of the scale. You
give her an A anyway since she is such a nice kid.
Situation Three: The
student is generally a good student but has lawyers for parents and is
very aggressive in asserting her claims. In fact, you know that she
will appeal her mark if she is not given an A. She has appealed four
times before and lost three of these times. She asks if you will
re-read her exam. You re-read her exam and conclude that in your best
judgment it is a B at the lower end of the scale. You give her an A
anyway because you know that although you will most likely win the
appeal, preparing for the appeal will eat up a week or two you could
better use as a vacation.
Some questions:
- In your opinion is the marker acting appropriately
in any of these cases in giving an A?
- Could the employer, other faculty members or other
students be legitimately aggrieved with the marker?
- Would it be fair to say that the marker is not marking in good
faith?
- If the marker told the other students what he had done would
that diminish their faith in the system of marking as a whole?
My intuitive answer is that: (1) the
marker is acting inappropriately, (2) the employer, colleagues and
other students would have a legitimate grievance, (3) the
marker is not marking in good faith since they are deliberately
deviating from the rules and introducing factors which appear
irrelevant into their decision making process; & (4) if this were
known to the other students this would cause them to be (corrosively)
skeptical of the whole marking system and the marks they get from
everyone else.
The final point, and this is where
many might disagree (if they don’t already) is that the situation of
the marker is analogous to that of a first instance or intermediate
appellate court judge in the face of a clearly binding precedent of the
highest appellate court (in their jurisdiction).
To use a Canadian example, you are
faced with a case where all the requirements for a promissory estoppel
are met (clear promise, reasonable reliance, which is massively
detrimental, no inequity, etc) except that the plaintiff is trying to
use the doctrine as a cause of action, a move prevented by binding
authority (see eg, Canadian Superior Oil, [1970] S.C.R. 932).
My intuitive answer would be that a trial or intermediate appellate
court judge, if they honestly could find no relevant reason to
distinguish the case, would have to dismiss the plaintiff’s claim even
if she thought that justice or fairness or social policy would be
better served by allowing the claim.
Thoughts?
--
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