Oh, dear!  Foakes v. Beer was a very silly decision, as Lord Blackburn pointed out and as is demonstrated by, for example, section 16 of the Mercantile Law Amendment Act in Ontario, reversing the decision.  Williams v. Roffey brought some common sense to the law and should rightly be celebrated; the “practical benefit” offers a sensible way to recognize those arrangements which should be recognized, even if one is not going to go as far as Karl Llewellyn (and I) would go and make all modifying promises enforceable.  In this province, Gilbert Steel Ltd. v. University Construction Ltd. was a dreadful decision, utterly pointless and, moreover, one that has done untold harm in denying enforcement of perfectly sensible arrangements of all kinds.  It was also dishonest as Wilson J.A. did not even refer to the cases that contradicted Stilk v. Myrick.  I know that they were brought to the court’s attention as I heard the arguments in court and helped draft the appellant’s factum.  The rule was far less widely accepted than Jason imagines. Why, for example, is Hartley v. Ponsonby any less of an authority that Stilk v. Myrick?

 

The important point is not whether there is or is not consideration but to ask if there is any other reason not to enforce the agreement the parties have made; that’s the correct place to start any analysis.  The absence of consideration is seldom, by itself, a reason to deny enforcement and certainly not in any commercial relation.

 

Jason’s idea that consideration represents some transcendent value ignores completely the way in which agreements actually work and the efforts of parties to adjust their relation as it is projected into the future.  Going-transaction adjustments are made all the time and, absent duress or some other good reason to deny enforcement, should be enforced whether or not some technical consideration can be found.

 

Angela Swan