Piping in after my learned colleague:

In Quebec, as in France and related places, a donation is a contract by which one gratuitously transfers ownership of (or some lesser proprietary right in) a tangible thing. It would have no application to a contractual variation. Others will correct me if I am wrong, but although the German notion of donation is larger (it might reach, for example, a gratuitous assignment of a debt) I cannot imagine anyone characterizing one of these commercial variation agreements as a donation. Extension of time, for example, is not a donation because there is no transfer of a right. Doing work or services for nothing is not a donation, and lending something for nothing is not a donation (although they are probably examples of other contracts). One function of the contract of donation (since post-classical Roman law) is to provide a legal explanation for the transfer of rights and without such a transfer you are necessarily in some other contract. Moreover, the intention required for a contract of donation would simply not be present in a commercial variation.

One can make a contract to make a donation (just as one can make a contract to make a sale or a lease or any other contract) and a contract to make a donation has special formality rules in our law, as in Germany. As Steve noted, there is a long history of this (Dawson, Gifts and Promises). But again, these provisions would not be applicable to a commercial variation because it would not be a contract to make a donation.

I have looked my favourite book on Quebec obligations which has a short discussion of variation and it simply says if it is to be a real variation (ie going beyond eg a temporary allowance of time, and actually changing the legal rights of the parties), then you have to find all the requirements of a new contract. Which, of course, does not include consideration in the common law sense. Formal requirements are the exception not the rule, so a particular form would generally be required only if some text of law required it. If formality was required for the original contract, that formality is required to amend (Civil Code of Quebec art. 1414).

The general rule of consensualism in our code (which is the word used to capture the absence of need for formality) does, however, contemplate in its closing words that the parties can lay down their own requirement of form, and this would seem applicable to the case in which the parties stipulate that variations need to be in a particular form:

1385. A contract is formed by the sole exchange of consents between persons having capacity to contract, unless, in addition, the law requires a particular form to be respected as a necessary condition of its formation, or unless the parties subject the formation of the contract to a solemn form.

(discussed in the franchise context in Billards Dooly's inc. c. Entreprises Prébour ltée, 2011 QCCS 3944 http://canlii.ca/t/fmkmx [189]-[190])

Lionel

 

 

 

 

From: Andrew Tettenborn <a.m.tettenborn@swansea.ac.uk>
Date: Wednesday, 8 November 2017 at 2:14
To: John Kleefeld <john.kleefeld@unb.ca>, Nick McBride <njm33@cam.ac.uk>, Robert Stevens <robert.stevens@law.ox.ac.uk>, Jason Neyers <jneyers@uwo.ca>
Cc: ODG <obligations@uwo.ca>
Subject: Re: MWB v Rock Advertising

 

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

 

On 07/11/2017 23:22, John Kleefeld wrote:

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)

 

 

 

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Andrew Tettenborn Professor of Commercial Law, Swansea University Institute for International Shipping and Trade Law School of Law, University of Swansea Richard Price Building Singleton Park SWANSEA SA2 8PP Phone 01792-602724 / (int) +44-1792-602724 Cellphone 07472-708527 / (int) +44-7472-708527 Fax 01792-295855 / (int) +44-1792-295855

Andrew Tettenborn Athro yn y Gyfraith Fasnachol, Prifysgol Abertawe Sefydliad y Gyfraith Llongau a Masnach Ryngwladol Ysgol y Gyfraith, Prifysgol Abertawe Adeilad Richard Price Parc Singleton ABERTAWE SA2 8PP Ffôn 01792-602724 / (rhyngwladol) +44-1792-602724 Ffôn symudol 07472-708527 / (rhyngwladol) +44-7472-708527 Ffacs 01792-295855 / (rhyngwladol) +44-1792-295855

 

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