If I sell you an option to buy my land or post notices on my bins, you are free to buy the land or post the notices or to let the option lapse, partially or wholly.  The fact that the actual notice, i.e., the words and pictures on the signs to be put on the bins, was to be prepared by the seller of the option is neither here nor there; the defender could have used those services but chose not to.  The fact that the pursuer would prepare the notices simply means that the option is contractually slightly more complicated than a simple sale of the space, i.e., the advertising opportunity.  That fact doesn’t change the analysis.

The example of a monthly subscription to a site one does not use is apposite; it illustrates a contractual situation similar to that in the case; it is not a contradiction of my analysis.

This analysis is developed and other examples provided in Swan & Adamski, Canadian Contract Law, 3rd ed. (Markham: LexisNexis, 2012), §§6.279, ff.

Angela

 

 

Surely, an option implies a choice to do something. The ads in White & Carter were made up and placed on the bins by the pursuer, as far as I remember: the defender played no part whatever in the process, and was never expected to. Might a better example of an option be a monthly subscription to a website such as Ancestry.com, which binds the customer for a year whether or not he ever accesses it?

Andrew

The case will never be understood until it is realized that what the plaintiff sold was an option, permitting the defendant to put signs on the dust bins for the term of the contract.  As an option, the defendant got precisely what it wanted — at least at the time that the contract was made — and there is no more reason for giving it any relief than there would have been had the defendant paid the full price when the contract was made.  The fact that payment was to be made by instalments is completely irrelevant.  If you buy an option and don’t use it, that’s your problem, not the seller’s.

It is quite common to structure agreements like this as options and employment contracts are frequently so structured.  One (intended) consequence is that any obligation to “mitigate” cannot possibly arise.

The fact that neither counsel nor any member of the House of Lords saw the nature of the contract in this light is not a reason for continuing to analyze it in some bizarre and wholly artificial way.

Angela Swan

 

From: Jason Neyers [mailto:jneyers@uwo.ca]
Sent: April-30-14 2:08 PM
To: obligations@uwo.ca
Subject: ODG: White & Carter (Councils) v McGregor

 

Dear Colleagues:

Those interested in White & Carter (Councils) v McGregor and the issues it raises might find the following of use: https://www.academia.edu/6842579/No_right_to_perform_a_contract

Margarida Rego,  No right to perform a contract?

Summary: This thesis offers an alternative outlook on the decision of a contractual party to reject the benefit of the contract when he is no longer interested in the other party’s performance. It is an attempt to justify such course of action by challenging the proposition that one is always entitled to perform one’s own contractual promises. This shall be done in the context of the controversial decision of the House of Lords in White & Carter (Councils) v McGregor [1962] AC 413.

Happy Reading,

-- 

Jason Neyers

Professor of Law

Faculty of Law

Western University

N6A 3K7

(519) 661-2111 x. 88435