From: Janet O'Sullivan <jao21@cam.ac.uk>
To: Robert Stevens <robert.stevens@law.ox.ac.uk>
CC: Jason W Neyers <jneyers@uwo.ca>
Gideon Shirazi <gidons@gmail.com>
obligations@uwo.ca
Date: 07/11/2017 20:45:28 UTC
Subject: Re: MWB v Rock Advertising
I like consideration too. 

There are two problems with MWB and Rock that are worth mentioning. The first is that the licensor didn’t request the benefit that the Court of Appeal latched onto (avoidance of a void), as evidenced by its immediate disavowal of the variation - a disavowal that was not regarded as inequitable and thus not sufficient to generate an estoppel. The second, and related, is the fact that the licence required variations to be in writing but this was oral (and not just oral, made informally when the licensee phoned the licensor’s credit controller on her mobile phone when on the bus home! - see the transcript of the first instance judgment). I would have more sympathy for an argument based on practical benefit if the licensor had varied in writing because at the time it did indeed wish to avoid a void, then later sought to change its mind - but then it would have been estopped. 

Best wishes
Janet 

On 7 Nov 2017, at 20:26, Robert Stevens <robert.stevens@law.ox.ac.uk> wrote:

Being promised something you've already been promised is no benefit to you.

Receiving a performance that you wouldn't otherwise receive (even though already promised) is a benefit to you.


I quite like consideration, and think it more important than often supposed, but if Foakes v Beer went I'd sleep easy in my bed.
R

On 7 Nov 2017 8:18 pm, Jason W Neyers <jneyers@uwo.ca> wrote:

I admit that I am no expert in English licensor-licensee law but if Rock were required to remain in occupation then actually staying in occupation is not a legal benefit for MWB. You can’t give me something I am already entitled to as a matter of right (from you) and have that count as consideration.  Given that the judges only looked for practical benefits, I assume that Rock had this obligation.

 

Sincerely,

 

 

esig-law

Jason Neyers
Professor of Law
Faculty of Law
Western University
Law Building Rm 26
e. jneyers@uwo.ca
t. 519.661.2111 (x88435)

 

From: Gideon Shirazi [mailto:gidons@gmail.com]
Sent: November 7, 2017 2:48 PM
To: Jason W Neyers <jneyers@uwo.ca>
Cc: Angela Swan <aswan@airdberlis.com>; obligations@uwo.ca
Subject: Re: MWB v Rock Advertising

 

Jason/Angela

 

Is this really a Foakes v Beer case? In Foakes v Beer, Dr Foakes owed Ms Beer a fixed sum and, in effect, Ms Beer agreed to forego interest if Dr Foakes signed up to a payment schedule.

 

Here, the relationship between MWB and Rock involved a licensor-licensee relationship over premises rather than merely a debtor-creditor relationship created by the arrears. The licence could provide additional longer-term benefits for MWB because the premises would be occupied, and there was a decent chance that the business premises licence could be extended. Paragraph 47 of the Court of Appeal judgment really makes this point. I agree that, on Foakes v Beer logic, merely entering into a payment schedule for an existing debt should not constitute good consideration - but the additional benefits may.

 

Best wishes

Gideon Shirazi

 

 

 

On 7 November 2017 at 18:54, Jason W Neyers <jneyers@uwo.ca> wrote:

Can I just say in my defence that it seems to me that if you are right then there should be no special rule for modifications, either consideration is needed all the time or it is not.  Now the right answer may be that it is never needed but where the common law has got to is incoherent and intellectually unsustainable.

 

Can I also add that there is nothing inconsistent, at the level of principle, between Hartley v. Ponsonby and Stilk v. Myrick--in fact they appear to be mutually supportive of the pre-existing duty doctrine and are both good authorities.  

 

All the best,

 

esig-law

Jason Neyers
Professor of Law
Faculty of Law
Western University
Law Building Rm 26
e. jneyers@uwo.ca
t. 519.661.2111 (x88435)

 

From: Angela Swan [mailto:aswan@airdberlis.com]
Sent: November 7, 2017 12:46 PM
To: 'MacMillan, Catharine' <catharine.macmillan@kcl.ac.uk>; Jason W Neyers <jneyers@uwo.ca>; obligations@uwo.ca
Subject: RE: MWB v Rock Advertising

 

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

 

 

From: MacMillan, Catharine [mailto:catharine.macmillan@kcl.ac.uk]
Sent: November-07-17 11:51 AM
To: Jason W Neyers <jneyers@uwo.ca>; obligations@uwo.ca
Subject: Re: MWB v Rock Advertising

 

Hi, Jason,

Leave to appeal was granted in January this year in MWB v Rock.  As far as I know (and the beauty of a list is that this view avails itself of a quick correction from other recipients) the appeal is to proceed.  

With kind regards,

Catharine

 

Professor Catharine MacMillan

The Dickson Poon School of Law

King's College London

Strand 

London WC2R 2LS

tel: +44 7848-5930

 

 

From: Jason W Neyers <jneyers@uwo.ca>
Sent: 07 November 2017 16:46:20
To: obligations@uwo.ca
Subject: ODG: MWB v Rock Advertising

 

Dear Colleagues:

 

Has anyone heard whether MWB v Rock Advertising [2016] EWCA Civ 553 is going to the Supreme Court? I find it shocking the ease with which the court of appeal disregards Foakes v Beer and its earlier decision in Selectmove.  I also find it odd the reverence that the court (and UK commentators) seem to have for Williams v Roffey Bros. For the reasons given in M Roberts, “The Practical Benefit Doctrine Marches On” (2017) 80 MLR 339 it seems clear that Williams is bad law that is inconsistent with the traditional requirements of consideration (move from, bargained for, coterminous with) and ultimately destructive of the idea of a contractual obligation that is binding on the party subject to it.

 

First, vicarious liability now the law of contract. Oh well.

 

Sincerely,

 

esig-law

Jason Neyers
Professor of Law
Faculty of Law
Western University
Law Building Rm 26
e. jneyers@uwo.ca
t. 519.661.2111 (x88435)