I don't see how my "reasonable expectations argument" could "fall away"; it would have been vindicated and I would be delighted and encouraged to hold it closer. My belief is that a focus on reasonable expectations is the principal basis for dealing with problems arising out contractual relations-which is not the same thing as saying that there are not serious problems in discovering what the expectations might be and which party's expectations should be protected.

I don't understand what it would mean to say that "the standard of care doctrine" is wrong; what alternative is possible? I've never tried to imagine one; perhaps I could. Do you have one?

-----Original Message-----

From: Jason Neyers [mailto:jneyers@uwo.ca]

Sent: Friday, November 28, 2008 2:45 PM

To: Angela Swan; obligations@uwo.ca

Subject: Re: Judging, Consideration and Going-Transaction-Adjustments

Just so we are clear, I think it is advisable for the SCC to introduce a s. 90-like doctrine in Canada (provided the remedy is limited to detrimental reliance) and that that move would be consistent with CJ. If we did that would your reasonable expectations argument fail away? BTW, is the standard of care doctrine wrong?

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

Angela Swan wrote:

>

> Jason,

>

> I have never said that what "ordinary people" think of the law should

> be the law. What I do say is that the expectations of merchants and,

> yes, of ordinary people too, are entitled to protection from the

> law-though of course they can't always be-and if a judge (or an

> academic) is going to apply (or propose) a rule (or an approach to the

> law) that will defeat them he or she should have very good reasons for

> doing that. You have not offered a reason (apart from a mechanical

> application of the doctrine of consideration) to justify defeating the

> expectations of the plaintiff in /Williams v. Roffey/ or /Gilbert

> Steel/, to say nothing of those of Dr. Foakes.

>

> Apart from the fact that no one in Canada has published a form of §

> 90, why couldn't we simply develop and embrace a home-grown

> equivalent? The sword/shield distinction won't work; there are just

> too many long and pointed shields out there that judges have

> cheerfully grasped (and rushed off with to slay the dragon).

>

> Angela

>

>

> ------------------------------------------------------------------------

> *From:* Jason Neyers [mailto:jneyers@uwo.ca]

> *Sent:* Friday, November 28, 2008 2:01 PM

> *Cc:* obligations@uwo.ca

> *Subject:* Re: Judging, Consideration and Going-Transaction-Adjustments

>

> Angela:

>

> 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.

>

> 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

>

>

> Angela Swan wrote:

>>

>> 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

>> ------------------------------------------------------------------------

>> *From:* Jason Neyers [mailto:jneyers@uwo.ca]

>> *Sent:* Friday, November 28, 2008 11:57 AM

>> *To:* obligations@uwo.ca

>> *Subject:* ODG: Judging

>>

>> 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: _

>>

>>    1. In your opinion is the marker acting appropriately in any of

>>       these cases in giving an A?

>>    2. Could the employer, other faculty members or other students be

>>       legitimately aggrieved with the marker?

>>    3. Would it be fair to say that the marker is not marking in good

>>       faith?

>>    4. 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