Consideration is about deals, not benefits - if Rob and I made a deal under which I promised to do something for Rob then in principle my promise is supported by consideration. I think it's a mistake to think of Foakes v Beer situations in terms of consideration (or to say that the promise not to sue in a Foakes v Beer situation is only supported by consideration if the promisor receives something of value 'in the eyes of the law' in return for the promise). In a Foakes v Beer situation there is a deal - if you pay me something now, I will let you off the rest. The question of whether that deal is binding should not be resolved by reference to the doctrine of consideration, but by reference to whether even though we have made a deal, this is the kind of deal that the law should not be enforcing (like the deal mentioned by Jason - promising to pay you not to hit me - or a deal to pay for sex). It seems obvious that different common law countries may take different views on this issue, just as they might in the case of deals to pay for sex.
Nick McBride
On 07/11/2017 21:03, Robert Stevens wrote:
If the subsequent agreement meets all the conditions necessary for a binding contract, how can the parties' prior agreement that it be in writing prevent it from doing so? Why should the earlier agreement trump the latter?
As for request, there clearly was a request for the performance received. The ways in which this performance, that would not otherwise have been received, benefitted the promisee were not themselves requested, but that doesn't matter.
I think consideration is indeed concerned with factual benefits. Having the right to something is not as good as having it, sadly. A bird in the hand is worth more than one in the bush, as Atiyah said 50 years ago, and others before him no doubt.
On 7 Nov 2017 4:47 pm, Jason W Neyers <jneyers@uwo.ca> wrote:
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,
Jason Neyers
Professor of Law
Faculty of Law
Western University
Law Building Rm 26
e. jneyers@uwo.ca
t. 519.661.2111 (x88435)
