Dear Gerard, all

One more general point I meant to make regarding financial ombudsman
schemes is that I have never understood why the powers of the
Ombudsman are not also given to the Court?

It seems incoherent to have at one and the same time (i) a Court,
which is obliged to administer strict law, and (ii) a compulsory (or
virtually compulsory) ombudsman scheme in which fairness and
reasonableness are the watchwords, hearing the same kinds of case.

If we think that in certain kinds of case, say cases involving
consumers, there should be greater scope for fairness (as ombudsman
type schemes show we do) then the case for giving that broader
fairness type jurisdiction to the Court seems unanswerable.

Perhaps I am missing something here though? Indeed, I'd be interested
in anything written on the point.

Kind regards

Ger

On 11/10/17, Gerard McMeel <gerard.mcmeel@guildhallchambers.co.uk> wrote:
> Ger
>
> In the U.K. this would have fallen within endowment mortgage redress
> programme ordered by our financial regulator (then the FSA) with the life
> insurer who had sold and typically mis-sold (“your mortgage will be repaid
> with some on top”, not you are gambling on fluctuating assets). So life
> insurers including Aviva - who acquired Hibernian here - had to pay billions
> in redress to assured homeowners. Did Ireland not have a similar scheme? (I
> know the defunct financial regulator was pretty supine).
>
> The bank obviously behaved pretty shabbily - both it and the insurer would
> over here be subject to the jurisdiction of the Financial Ombudsman Service
> with the power to do what is fair and reasonable in all the circumstances
> (and not bound by formal consideration or estoppel reasoning). Again would
> the Irish Ombudsman have been a better route for the couple or an equally
> dispiriting experience?
>
> Best wishes
>
> Gerard (McMeel)
>
> Sent from my iPhone
>
>
>
>
> Gerard McMeel
> Barrister
>
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> On 9 Nov 2017, at 22:13, Gerard Sadlier
> <gerard.sadlier@gmail.com<mailto: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<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<mailto: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<mailto:robert.stevens@law.ox.ac.uk>>
>> Date: Wednesday, 8 November 2017 at 16:34
>> To: Lionel Smith <lionel.smith@mcgill.ca<mailto:lionel.smith@mcgill.ca>>
>> Cc: ODG <obligations@uwo.ca<mailto: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<mailto: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<http://canlii.ca/t/fmkmx> [189]-[190])
>>
>> Lionel
>>
>>
>>
>>
>>
>>
>>
>>
>>
>> From: Andrew Tettenborn
>> <a.m.tettenborn@swansea.ac.uk<mailto:a.m.tettenborn@swansea.ac.uk>>
>> Date: Wednesday, 8 November 2017 at 2:14
>> To: John Kleefeld <john.kleefeld@unb.ca<mailto:john.kleefeld@unb.ca>>,
>> Nick McBride <njm33@cam.ac.uk<mailto:njm33@cam.ac.uk>>,
>> Robert Stevens
>> <robert.stevens@law.ox.ac.uk<mailto:robert.stevens@law.ox.ac.uk>>, Jason
>> Neyers <jneyers@uwo.ca<mailto:jneyers@uwo.ca>>
>> Cc: ODG <obligations@uwo.ca<mailto: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><mailto:john.kleefeld@unb.ca>
>>
>> http://www.unb.ca/faculty-staff/directory/law/kleefeld-john.html<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/<https://www.facebook.com/unblaw/>>
>>
>> [cid:image003.png@01D358AC.EF9A91A0]@UNBLaw<https://twitter.com/UNBLaw<https://twitter.com/UNBLaw>>
>> |
>> @UNBKleefeld<https://twitter.com/UNBKleefeld<https://twitter.com/UNBKleefeld>>
>>
>>
>>
>>
>> Read my most recent article on law and apology:
>> https://ssrn.com/abstract=3028811<https://ssrn.com/abstract=3028811>
>>
>>
>>
>>
>>
>> From: Nick McBride
>> <njm33@cam.ac.uk<mailto: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>><mailto:robert.stevens@law.ox.ac.uk>,
>> Jason W
>> Neyers <jneyers@uwo.ca<mailto:jneyers@uwo.ca>><mailto:jneyers@uwo.ca>
>> Cc:
>> "obligations@uwo.ca<mailto:obligations@uwo.ca>"<mailto:obligations@uwo.ca>
>> <obligations@uwo.ca<mailto: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>><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><mailto:jneyers@uwo.ca>
>> t. 519.661.2111 (x88435)
>>
>>
>>
>>
>>
>>
>>
>>
>>
>> --
>>
>> --
>>
>>
>>
>>
>>
>>
>>
>>
>>
>>
>> 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
>>
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>> Ysgol y Gyfraith, Prifysgol Abertawe
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>>
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>>
>>
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>>
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