consideration

Duress was not pleaded, and unless the counsel for the promisee in Williams was guilty of gross negligence, it seems safe to assume that this is because it had no prospect of success. Nonetheless, duress was given extensive consideration. Their lordships did conclude that economic duress was not made out on the facts.

I realise im crossing pens a little out of my league. You may not have your notes but im yet to venture to university!

You seem to be holding your own reasonably well notwithstanding. On that, I'm going to bed--time permitting I might address your points tomorrow, but I'm conscious of the need to do my actual revision! Though this isn't entirely unrelated, and has certainly made me look carefully at Williams v Roffey again, which can hardly be a bad thing.

Another interesting aspect of Williams v Roffey is that Russell and Glidewell LJJ regretted the failure of the claimant to raise estoppel to argue that the defence was precluded from raising as a defence that their agreement to pay was not binding.

The only court that could overturn Williams v Roffey is the Supreme Court, so while the Court of Appeal could distinguish it substantially, it couldn't overturn it. I'd contend (though per curiam, without my contract notes or any cases in front of me--at present my desk is covered in judicial review notes) that the practical benefit approach is, eighteen years on, well-established and couldn't be ousted except by the Supreme Court. Its merits are, of course, infinitely debatable. I'm rather sceptical about Williams v Roffey, personally--but for the time being it seems to be the law.

I'm intrigued by your iconoclastic/unusual preference for the Espinasse report. Worth noting that the report cited in Williams v Roffey is Campbell's. Care to explain your reasons for preferring Espinasse? I don't mean to sound combative, if this does--I'm just curious, as it's an unusual tack.

Yes I think that's right. It is a very poorly reasoned judgment and leaves the law in a complete mess. It would have been far more coherent to start using promissory estoppel offensively. The problem is, consideration is not important enough practically for this to be a real issue. I doubt we'll see a consideration case reach the SC for a while, and Williams v. Roffey has been allowed to bed in. I think it's undoubtedly settled now.


LJB- in your last post I think you're getting a bit mixed up in your arguments (although it's a really good effort, particularly if you haven't done a law degree yet!). Maybe it's me being a bit stupid!

1. The C of A in Williams v. Roffey rejected any notion of there being duress. As such, the lawyers could not have been negligent in not pleading it because they were right to do so. The facts in W v. R, however, can be readily distinguished from the present problem (as jjarvis has pointed out) and I think the Court would find differently here.

2. If a finding of duress would have been made then, as I have tried to explain before, the Court's findings probably would have been quite different. The duress would have rendered the purported variation to the contract voidable (whether supported by consideration or not) and it probably would have been rescinded by the Court (that being the usual remedy for duress/other actions where the contract is rendered void or voidable). The issue of consideration would have been of much lesser importance.

As it was, duress wasn't material in the case and the Court considered whether there was sufficient consideration provided by the promisee for the promisor. It was in this context that the "factual benefit" to Roffey became relevant. The "factual benefit" argument didn't arise as a replacement for economic duress (which was perfectly capable, by this point, of standing on its own two legs). Is that a bit clearer; does that make sense?

As I have said, Mr. Evans accepts that in the present case by promising to pay the extra £10,300 his client secured benefits. There is no finding, and no suggestion, that in this case the promise was given as a result of fraud or duress. If it be objected that the propositions above contravene the principle in Stilk v. Myrick, 2 Camp. 317, I answer that in my view they do not; they refine, and limit the application of that principle, but they leave the principle unscathed e.g. where B secures no benefit by his promise. It is not in my view surprising that a principle enunciated in relation to the rigours of seafaring life during the Napoleonic wars should be subjected during the succeeding 180 years to a process of refinement and limitation in its application in the present day. It is therefore my opinion that on his findings of fact in the present case, the judge was entitled to hold, as he did, that the defendants' promise to pay the extra £10,300 was supported by valuable consideration, and thus constituted an enforceable agreement.

I tried to summarise earlier. If you want to read my dissertation chapter on this I'm more than happy. Espinasse was actually the barrister in the Stilk v. Myrick- he argued for the plaintiffs. If you can't even understand the reasons why you've lost a case, it's all a bit disastrous isn't it?! This, as well as the fact that Espinasse's account would appear more in line with both precedent and the legal reasoning of the day, would suggest to me his version is to be preferred.

2. If a finding of duress would have been made then, as I have tried to explain before, the Court's findings probably would have been quite different. The duress would have rendered the purported variation to the contract voidable (whether supported by consideration or not) and it probably would have been rescinded by the Court (that being the usual remedy for duress/other actions where the contract is rendered void or voidable). The issue of consideration would have been of much lesser importance.

I also didn't argue that the C of A in substance, followed Espinasse's report. They followed Campbell's, and changed the rules on the basis that Campbell's report was correct. However, if Espinasse's report would have been followed in the first place (i.e. in 1809 or whenever Stilk was decided) then a lot of this trouble might have been saved.

I would be interested, though I don't know how much time I'll have to read it. I'll send you a PM with my email address.



On an exceptionally pedantic note, I don't think rescission actually bites where a contract is void. Rescission is an equitable remedy and it's within the court's discretion to grant or deny it based on general equitable principles. Where a contract is void, not voidable, the court must find the contract is a nullity. This takes on crucial significance where a third party gains rights in the subject matter of the contract, as in mistake of identity cases. Mistake renders a contract void--a nullity. This means that the court can't use its discretion to deny rescission to protect the good-faith purchaser for value without notice. I might be wrong on this, though.

I seem to remember Russell LJ saying something like he'd welcome an estoppel argument if it were "properly raised". The only problem with that is the English courts' obsession with the "shield not a sword" rule would appear to preclude it from ever being "properly raised". This is more for L-J-B's benefit, but remember this was the promisee suing the promisor for moneys he alleged were owing to him. However, I think their Lordships may have been hinting that they were amenable to the Australian approach to promissory estoppel (i.e. they were prepared to make it a cause of action in itself). This really would have radicalised consideration in England and Wales. As it is, we're stuck with this strange "factual benefit" compromise.

I would distinguish Williams v Roffey because in Williams the promisee made the offer to pay more. In the instant case (the moot), the promissor demanded more money. The factual distinction is easily made-out, and to my mind cogent. Your point is probably worth taking, but I would (as a matter of judgment) make it my subsidiary point. (I'd also note that I said above the issue is whether the practical benefit is *good* consideration.)

Sorry to bring quite an old thread up again but I'm doing a similar moot soon and I'm confused about this point. I appreciate that W v R can be distinguished on the facts of the offer to pay more coming from the defendant in W v R whereas it was demanded in the instant case, but how does this make a difference? The facts are different, but how does it affect the legal issue and make the case distinguishable?