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On 9 Nov 2017, at 22:13, Gerard Sadlier <gerard.sadlier@gmail.com> wrote:

Dear all,

A brief (first instance) Irish judgment published just today is, to my
mind, a stark example of the potential unfairness of the doctrine of
consideration.

In brief, a couple took out an endowment mortgage. The insurance
policy which was intended to redeem their mortgage (and sold to them
by the bank) proved far from sufficient to do so. The couple
negotiated with the bank (incidentally, one of the major Irish banks,
which one would have hoped/expected to act reasonably) and agreed a
repayment amount with an official of the bank. The bank admitted the
agreement was made but said that the bank official had no authority to
make the agreement and that the agreement was unsupported by
consideration. The bank sought possession of the couple's family
home. That claim succeeded, as the agreement reached was unsupported
by consideration.

http://www.courts.ie/Judgments.nsf/09859e7a3f34669680256ef3004a27de/c71f72075f40fff5802581d200478678?OpenDocument

I commented on the EWCA judgment in MWB when it was first published
and particularly on the holding that a 'no oral variation' clause is
not enforceable. No useful purpose would be served by my repeating
those comments here, though I continue to think that position is
unfortunate both for important practical reasons and as a matter of
principle.

Kind regards

Ger

On 11/8/17, Lionel Smith, Prof. <lionel.smith@mcgill.ca> wrote:
> I take your point 2 but I think it is meant to cover both cases and I doubt
> most civilians would see them as different. If the parties agree that form
> is required, it is. One could argue that the point is even stronger when
> they have made a contract to that effect (governing modifications) rather
> than simply saying that their agreement shall not take effect as a contract
> until some formal step is taken. In the civilian mind, the contract is the
> law of the parties in the sense of being the regime that they have bound
> themselves to. So it is not surprising that the former agreement trumps.
> That is how the judge viewed it in the case I mentioned: it was a typical
> clause that said any amendment must be in writing and he thought it was
> clearly operative (although the point was dealt with very quickly).
> L.
>
> From: Robert Stevens <robert.stevens@law.ox.ac.uk>
> Date: Wednesday, 8 November 2017 at 16:34
> To: Lionel Smith <lionel.smith@mcgill.ca>
> Cc: ODG <obligations@uwo.ca>
> Subject: Re: MWB v Rock Advertising
>
> 1. Within the common law, I think the general position is that I cannot
> transfer a right to you without agreement. If I want to make you the owner
> of my camel you have to accept it.
>
> There are some odd rules about conveyancing by way of deed and so on, but
> even there the donee has the choice to accept.
>
> The absence of an enforceable contract in cases of gift doesn't mean we have
> no requirement of agreement.
>
> Put another way, I think the civilians are right that gifts are part of the
> law of agreement (a broader category than the law of contract).
>
>
> 2. I wonder if art 1385 of the Quebec code is in point? I'd have thought it
> was referring to cases where by the terms of the agreement in question it
> had been agreed that a formal step was required for it to be enforceable.
> That isn't the case here: the question is whether an anterior agreement that
> a formal step is required trumps the subsequent agreement intended to be
> binding without more.
>
> R
>
>
> On 8 Nov 2017 9:17 pm, "Lionel Smith, Prof." <lionel.smith@mcgill.ca>
> wrote:
>
> 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<mailto:john.kleefeld@unb.ca>
>
> http://www.unb.ca/faculty-staff/directory/law/kleefeld-john.html
>
>
> [cid:image001.png@01D358AC.EF9A91A0]
>
>
> [cid:image002.png@01D358AC.EF9A91A0]
> /unblaw<https://www.facebook.com/unblaw/>
>
> [cid:image003.png@01D358AC.EF9A91A0]@UNBLaw<https://twitter.com/UNBLaw> |
> @UNBKleefeld<https://twitter.com/UNBKleefeld>
>
>
>
>
> Read my most recent article on law and apology:
> https://ssrn.com/abstract=3028811
>
>
>
>
>
> From: Nick McBride <njm33@cam.ac.uk><mailto:njm33@cam.ac.uk>
> Date: Tuesday, November 7, 2017 at 7:14 PM
> To: Robert Stevens
> <robert.stevens@law.ox.ac.uk><mailto:robert.stevens@law.ox.ac.uk>, Jason W
> Neyers <jneyers@uwo.ca><mailto:jneyers@uwo.ca>
> Cc: "obligations@uwo.ca"<mailto:obligations@uwo.ca>
> <obligations@uwo.ca><mailto: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><mailto: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,
>
>
>
> [g-law]
>
> Jason Neyers
> Professor of Law
> Faculty of Law
> Western University
> Law Building Rm 26
> e. jneyers@uwo.ca<mailto:jneyers@uwo.ca>
> t. 519.661.2111 (x88435)
>
>
>
>
>
>
>
>
>
> --
>
> --
>
>
>
>
>
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>
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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
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>
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