I am not sure if I would describe myself as a ‘civiliste’ , but I have been teaching civil law (along with common law) for the past 18 years. This is not strictly an argument, but I can report that my teaching experience has left me skeptical of attempts to show that the doctrine of consideration is a conceptual necessity or is based on some fundamental principle or value. As I often say to my students, the best explanation of the consideration doctrine will not be a very good explanation: if the explanation is too ‘good’ (in the sense of showing why we must have the doctrine), then it suggests, implausibly, that the civil law is incoherent or irremediably defective. (Ironically, many of the attempts to show that consideration is a necessary element of any coherent law of contract are based on the writings of a German: Hegel). I can also report that, in my experience, it is difficult to find examples where the absence of a doctrine of consideration has led to problems, whether practical or principled, for the civil law. It is true, as Andrew notes, that civil law systems typically treat promises to make a gift differently from other promises: although such promises are in principle binding, they typically must satisfy certain formal requirements (eg, notarisation) to be binding or (as in Quebec) to support a claim for expectation damages (as opposed to reliance damages). This differential treatment seems to me justified, at least in broad outline: there are lots of ways that gift promises differ from promises made in exchange for other promises. However, these differences cannot explain the common law doctrine of consideration, as it clearly renders invalid all sorts of promises other than gift promises.

Be a bit careful before you call on civilians. Contracts and other arrangements giving something for nothing often have their own rules there too: e.g. German Civil Code, Art 518 (For a contract under which performance is promised as a gift to be valid, there must be notarisation of the promise ...).

Andrew

Civilistes, where are you? A peppercorn for your thoughts.

 

JOHN C. KLEEFELD  Dean and Professor, Faculty of Law University of New Brunswick PO Box 4400 41 Dineen Drive Fredericton NB  Canada E3B 5A3   +1 506 453 4635 john.kleefeld@unb.ca http://www.unb.ca/faculty-staff/directory/law/kleefeld-john.html

/unblaw @UNBLaw | @UNBKleefeld

 

Read my most recent article on law and apology: https://ssrn.com/abstract=3028811

 

 

From: Nick McBride <njm33@cam.ac.uk>
Date: Tuesday, November 7, 2017 at 7:14 PM
To: Robert Stevens <robert.stevens@law.ox.ac.uk>, Jason W Neyers <jneyers@uwo.ca>
Cc: "obligations@uwo.ca" <obligations@uwo.ca>
Subject: Re: ODG: MWB v Rock Advertising

 

I can't agree with Rob that consideration is concerned with factual benefits. If Rob and I enter into an agreement under which I promise to pay him £100 and he in return promises to do X, it doesn't matter a bit whether his promising to do X or his doing X is of any benefit to me - in principle, his promise to do X amounts to consideration for my promise. Similarly, if I promise to pay Rob £100 if he does X - in principle, his doing X will amount to consideration for my promise even if I was generously making my promise with the intention of benefiting him ('If you shave your beard off, I'll pay you £100!') and not to benefit me at all.
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)