Turn on thread page Beta
    • Thread Starter
    Offline

    0
    ReputationRep:
    I have a moot question to do, and am in a bit of a predicament as i am able to put together my argument for the consideration aspect, however for some odd reason there is an issue about applying foakes v beer instead of williams v roffey... but foakes and beer deals with part payment of a debt.

    as the lead counsel i am to deal with consideration and that my case is distinguishable from williams v roffey, and if it is the courts should have applied the reasoning in Foakes v Beer

    once the question is up you will understand how confusing it is.


    Thomson v Reuter
    Thomson is the owner of a block of flats. In May 1999 he entered into a contract with Luis Reuter under which Mr Reuter agreed to paint 10 flats in 10 days in return for a fee of £4,000, which was payable in advance. Mr Reuter commenced work on time on Monday 10 May, as required by the contract. On the afternoon of Friday 14 May, as Mr Reuter was leaving the site, he told Mr Thomson that he would see him on Monday morning. Mr Thomson asked why he was not coming in to work on Saturday. Mr Reuter responded that he was not required by the terms of the contract to work at weekends and that he was looking forward to spending his weekend on the beach. Mr Thomson pointed out that he had new tenants moving into the flats on Thursday 20 May. This made it vital that the work be completed by 6pm on Wednesday 19 May in order to give him time to make sure that the flats were ready for the new tenants. He also insisted that the terms of the contract expressly required Mr Reuter to work at weekends. Mr Reuter denied this but neither party could find a copy of the contract to resolve the dispute. A furious argument then broke out between the two. Mr Reuter demanded an extra £1,000 before he would even consider working at the weekend. Mr Thomson refused to pay, insisting that he would not be blackmailed. Eventually Mr Thomson agreed to pay Mr Reuter an extra £500 to work over the weekend and to complete the work by 6pm on Wednesday 19th. Mr Reuter duly worked on both Saturday and Sunday and finished the work on time as agreed. Mr Reuter then submitted a bill for the extra £500 but Mr Thomson refused to pay it. Mr Thomson has now found his copy of the contract and it states that "Saturday and Sunday shall both constitute working days for the purposes of this contract." Mr Reuter sued to recover the extra £500 promised by Mr Thomson.
    At first instance, Pratt J held that Mr Reuter was entitled to recover the £500 on the following grounds:
    1. Mr Reuter had provided consideration for the promise to pay the extra £500. Following the decision of the Court of Appeal in Williams v. Roffey Bros & Nicholls (Contractors) Ltd [1991] 1 QB 1, Pratt J held that Mr Thomson had obtained a practical benefit as a result of Mr Reuter 's specific promise to complete the work by Wednesday 19 May at 6pm.
    2. The promise to pay the £500 had not been procured by the exercise of economic duress. Mr Reuter had genuinely, albeit erroneously, believed that he was not required to work at the weekend. In the absence of bad faith on the part of Mr Reuter , there was no basis for any conclusion that the promise to pay had been procured by the application of economic duress that was sufficient to set aside the promise to pay the £500: CTN Cash and Carry Ltd v. Gallaher Ltd [1994] 4 All ER 714 applied.
    The Court of Appeal dismissed Mr Thomson ' appeal. Mr Thomson now appeals, with leave, to the House of Lords on the following grounds:
    1. His promise to pay £500 was unsupported by consideration and the judge had erred in applying Williams v. Roffey Bros to the present facts. The Williams case was either distinguishable or, if it was not, should be overruled on the grounds that it is inconsistent with the decision of the House of Lords in Foakes v. Beer (1884) 9 App Cas 605.
    2. Even if consideration had been provided for the promise to pay the extra £500, nevertheless the promise should not be enforced because it had been made when Mr Thomson had been subject to economic duress. Whether or not Mr Reuter had acted in good faith was irrelevant since bad faith is not a requirement of economic duress where, as in the present case, the threat is one to break a contract.

    the part highlighted is the issue i have to do.

    I am distinguishes the case from williams and roffer and saying it is more on the grounds of stilk v myrick.
    however i really do not understand how i bring foakes and beer in to it??

    please some one help i would be very grateful
    Offline

    14
    ReputationRep:
    (Original post by mysterious_hobo)
    cut to streamline thread
    Hang on, is this for uni or for an extracurricular moot?
    Offline

    19
    ReputationRep:
    RE: distinguishable, you'd need to think about why these facts are different from Williams v Roffey. For example, you may take the view that there isn't actually a practical benefit here. You'd need to think carefully about what practical benefits actually are.

    RE: overruled, the decision in Foakes v Beer (essentially) is the rule in Re Pinnel's Case. Its arguable that it goes beyond part-payment of a debt and that Williams v Roffey is incompatible with it. O'Sullivan wrote an excellent article on this in the CLJ. I believe this idea may have been mooted in the High Court recently.
    Offline

    14
    ReputationRep:
    (Original post by jacketpotato)
    RE: distinguishable, you'd need to think about why these facts are different from Williams v Roffey. For example, you may take the view that there isn't actually a practical benefit here. You'd need to think carefully about what practical benefits actually are.

    RE: overruled, the decision in Foakes v Beer (essentially) is the rule in Re Pinnel's Case. Its arguable that it goes beyond part-payment of a debt and that Williams v Roffey is incompatible with it. O'Sullivan wrote an excellent article on this in the CLJ. I believe this idea may have been mooted in the High Court recently.
    (I agree with what you say--and wrote a response saying as much--but in the light of a post on another moot help thread discussing the implications of helping someone in a competitive event, I wasn't sure whether we should help or not.)

    Definitely agree on the O'Sullivan article--it's called "In Defence of Foakes v Beer". I think there's another distinction from Williams--in Williams the innocent party offered to pay more. This has important implications for the duress argument.
    Offline

    2
    ReputationRep:
    (Original post by mysterious_hobo)
    -snip-
    I posted this on another thread but I'm just going to copy it across to here. I'll say in advance that I don't mean any criticism of the two posters who have already offered help - I think it's fair to say that they have thoroughly established their credentials on this site by now!

    Mooting competitions are a contest of both your oral advocacy ability and your ability to plan and shape a persuasive answer. Shaping that answer is a job for you and your partner - getting someone to help you with your answer for a contest is self-evidently unreasonable and is most likely against the rules. I hope - barring, as I said, the two posters above - that no-one on TSR will assist you in this unless they are certain that you are behaving ethically and within the rules.

    There is a distinction here between an in-class moot or an extra-curricular moot - this I imagine is why jjarvis asked that question above. Whereas a moot in your classes is essentially formative, extra-curricular mooting contests are also a chance for law students to show their ability to create a persuasive argument, and wins are considered a valuable accomplishment for a budding barrister or solicitor-advocate's CV. Put simply, getting someone to help you with an in-class moot is only cheating yourself, but getting help in an actual competition will potentially cheat someone else out of winning.
    Offline

    14
    ReputationRep:
    (Original post by Fysidiko)

    There is a distinction here between an in-class moot or an extra-curricular moot - this I imagine is why jjarvis asked that question above. Whereas a moot in your classes is essentially formative, extra-curricular mooting contests are also a chance for law students to show their ability to create a persuasive argument, and wins are considered a valuable accomplishment for a budding barrister or solicitor-advocate's CV. Put simply, getting someone to help you with an in-class moot is only cheating yourself, but getting help in an actual competition will potentially cheat someone else out of winning.
    From my perspective (and I moot a lot), I'd be mad as hell if someone else wrote my opponents' submissions or told them what to argue. That said, I *often* rehearse my arguments, or at least show my submissions, to a friend or friends for their comments. I'd expect my opponents to do the same. The former is turning in work done by someone else; the other is getting feedback from friends, and I think they're quite different.
    Offline

    2
    ReputationRep:
    (Original post by jjarvis)
    From my perspective (and I moot a lot), I'd be mad as hell if someone else wrote my opponents' submissions or told them what to argue. That said, I *often* rehearse my arguments, or at least show my submissions, to a friend or friends for their comments. I'd expect my opponents to do the same. The former is turning in work done by someone else; the other is getting feedback from friends, and I think they're quite different.
    Absolutely - it's a matter of degree, and I think most people know where the line is even if they don't want to admit it. I think it's telling that these questions are very often posted under new accounts, which always makes me more suspicious.

    That said it's still not as annoying as hearing counsel discussing their submissions with another team that have just mooted on the same scenario and got feedback.
    Offline

    19
    ReputationRep:
    (Original post by Fysidiko)
    There is a distinction here between an in-class moot or an extra-curricular moot - this I imagine is why jjarvis asked that question above. Whereas a moot in your classes is essentially formative, extra-curricular mooting contests are also a chance for law students to show their ability to create a persuasive argument, and wins are considered a valuable accomplishment for a budding barrister or solicitor-advocate's CV. Put simply, getting someone to help you with an in-class moot is only cheating yourself, but getting help in an actual competition will potentially cheat someone else out of winning.
    Fair point. Personally I take the view that mooting, particularly for the first time, can be an intimidating and stressful experience, particularly for people who haven't previously done any form of debating/public speaking and are in their first year of studying law. Therefore I am keen to reassure/guide people to ensure that their experiences of mooting are positive, personally I didn't know what I was doing in the first moot I did and I became discouraged from doing more. I think that a basic level of help can really help, but isn't sufficient to help people do well or win.

    Of course, there is a distinction between reassuring people and doing their moot for them.
    Offline

    0
    ReputationRep:
    Foakes v beer is relevant because it concerns pre-existing contractual duties. Williams v Roffey defines a much more encompassing role for consideration allowing it to be used in cases which we would usually have probably argued duress. This is arguably because duress isnt a particuarly well equipped area of law.

    You need to argue that by following the precedent of williams v roffey the courts are going to further upturn the role of consideration- This is the 'cutting edge' of law, to my knowledge it hasnt actually arisen so speculate what could happen. That finding a practical benefit is not only in itself a difficult and costly task to determine by the courts but that it is in fact quite capably covered by duress. Dont forget, at this level the courts are not really interested in the outcome for either party but in the refinement of law. Argue how it makes sense for the laws development and why it would set a good precedent to continue with pre existing contractual duty (this is foakes v beer). Bring in all the obvious good points for pre exisitng contractual duty such as sanctity of contract and laissez-faire ideals.

    Might be a load of crap- but you have asked TSR for help. And its late. And it isnt my assignment. READ MCKENDRICK ON CONTRACT LAW.....
    Offline

    14
    ReputationRep:
    (Original post by L-J-B)
    That finding a practical benefit is not only in itself a difficult and costly task to determine by the courts but that it is in fact quite capably covered by duress.
    While I agree with most of what you say, I don't think this point holds water.

    Saying that duress covers the issue is unhelpful. If duress exists, the rule in Williams v Roffey won't require the promisee to pay the additional charge. If it doesn't exist, then the usual questions about consideration for a pre-existing contractual obligation are still open and relevant. Williams v Roffey establishes this in clear terms. The absence of duress is a necessary, but not a sufficient, condition for upholding the variation.

    To elaborate: The whole point is that in Williams v Roffey there wasn't duress in the usual sense. Economic duress is in any case a recent doctrine (Espinasse's report says Stilk v Myrick was decided on policy concerns about sailors engaging in physical duress, not threat of breach of contract, and in any case most modern courts and academics rely on the Campbell report, which deals with the absence of fresh consideration.) In any case, on its facts duress wasn't made out in Williams v Roffey. The party who agreed to pay more made the overture offering to do so. The agreement to pay more would have to be vitiated on other grounds. This leads us back to the first question: is consideration required to vary a contract, or can a practical benefit constitute good consideration? Duress *doesn't* cover the situation in Williams v Roffey, so the law must address situations where there is no duress. Of course, in the instant case it's arguable duress is made out, but at the general level duress alone isn't sufficient to handle questions which frequently arise about variation.
    Offline

    14
    ReputationRep:
    (Original post by jacketpotato)
    I think that a basic level of help can really help, but isn't sufficient to help people do well or win.

    Of course, there is a distinction between reassuring people and doing their moot for them.
    I'm inclined to agree--a brilliant skeleton badly presented is useless, while an average-decent skeleton presented well and argued cogently will usually stand someone in very good stead. (I also tend to put a lot of effort into making my skeletons crystal clear (to the extent I can) and including pinpoint citations for every submission. This means my opponent has ample opportunity to see the authority on which I rely and prepare a case to meet my arguments. I think this takes reduces some of the advantage people with advice on their skeletons would otherwise obtain.)
    Offline

    0
    ReputationRep:
    (Original post by jjarvis)
    To elaborate: The whole point is that in Williams v Roffey there wasn't duress in the usual sense.

    It is the view of many academics, as mckendrick argues, that duress was indeed 'arguable' in Williams v Roffey- yet to comment on this would be missing the point.
    Because duress was never argued in Williams v Roffey therefore i would neither comment on whether duress was present or in what sense it was present if it was (if that makes sense?)

    Consideration (currently) IS required to vary a contract, the question is what constitutes good consideration. Several (denning) cases purport to define this 'practical benefit' as a way to construct a form of good consideration where there was none in the 'conservative' sense (and so create a just outcome case by case whilst defining the shape of consideration into what denning saw as a more efficient modern role. What a legend.). By changing the role of consideration in such a way 'overlaps' on where many academics forsaw the role or progress of duress.


    By arguing duress over consideration to cover this area of law is how i see you distinguish out of williams v roffey. It may not be a particuarly elegant solution however it is aimed at the moot.
    Offline

    2
    ReputationRep:
    (Original post by L-J-B)
    It is the view of many academics, as mckendrick argues, that duress was indeed 'arguable' in Williams v Roffey- yet to comment on this would be missing the point.
    Because duress was never argued in Williams v Roffey therefore i would neither comment on whether duress was present or in what sense it was present if it was (if that makes sense?)

    Consideration (currently) IS required to vary a contract, the question is what constitutes good consideration. Several (denning) cases purport to define this 'practical benefit' as a way to construct a form of good consideration where there was none in the 'conservative' sense (and so create a just outcome case by case whilst defining the shape of consideration into what denning saw as a more efficient modern role. What a legend.). By changing the role of consideration in such a way 'overlaps' on where many academics forsaw the role or progress of duress.


    By arguing duress over consideration to cover this area of law is how i see you distinguish out of williams v roffey. It may not be a particuarly elegant solution however it is aimed at the moot.

    I don't fully accept what you're saying. Someone like Atiyah would argue that Stilk v. Myrick was decided as it was because of the absence of a well-developed action of duress. Consideration, therefore, was used as an indirect device to combat the problem of the sailors holding the Captain to ransom. Whether you accept this or not (and I don't), the Court in Williams v. Roffey were clearly influenced by this mode of thinking. Their Lordships took great pains to ensure that Williams had not procured his extra payment by duress and after deciding that he hadn't, they then considered whether any consideration existed. However, it seems to me that if they had found that the promise had been extracted by duress, it is unlikely the consideration issue would have arisen. The payment would have simply been held to be voidable, and the purported variation to the contract rescinded.

    The term "practical benefit" first arose in Williams v. Roffey which was decided about 7 or 8 years after Denning left the Court of Appeal. You are right that in cases like Ward v. Byham, Denning hinted at this approach, but it was never fully developed. The difficultly with the dicta in Williams v. Roffey is that it leaves unclear what a "practical benefit" is. In the case, cumulatively their Lordships came up with broadly 4 potential options:

    1. The avoidance of the need to for a substitute builder to finish the works
    2. The avoidance of the breach of contract that would have occurred by for the additional payment.he
    3. The avoidance of the penalty clause that would have been incurred by the Roffey.
    4. The replacement of a "haphazard method of payment...by a more formalised system".

    The problem with the first 2 is that they effectively vitiate the need for consideration altogether. They are consequences that inevitably occur in a Williams v. Roffey type situation- it can hardly be said that they comprise an additional benefit!

    The problem with the last 2 is that they were peculiar to the particular facts. We don't really derive any knowledge of other things that could be described as "practical benefits". I like Williams v. Roffey and I think the judgments are very well-intentioned, but it is poorly reasoned!

    OP- given what I've just told you, the meaning of "practical benefit" is very much still open to debate. Moreover, on the facts that we have here and as others have told you, there are very strong grounds to argue that there was no additional practical benefit to Mr Thomson in any case. I'll leave you to decide how you approach this.
    Offline

    0
    ReputationRep:
    (Original post by AdamTJ)
    Given what I've just told you, the meaning of "practical benefit" is very much still open to debate. Moreover, on the facts that we have here and as others have told you, there are very strong grounds to argue that there was no additional practical benefit to Mr Thomson in any case. I'll leave you to decide how you approach this.
    Practical benefit is not only 'open to debate' but its entire role within english law is questionable.

    I have used 'practical benefits' in quote marks as the use of constructing 'not-previously-existing' or 'very "weak"' consideration (as in not previously passing the sufficiency test when viewed as valuable within a legal benefit).

    A small excerpt from the common law review...

    http://review.society.cz/index.php?I...tent&task=view

    4.2 New form of consideration: Practical benefit

    In Williams v. Roffey, the court found valid consideration in the practical benefit that Roffey obtained by his agreement with Williams. So far the practical/factual benefit (Denning) has been refused as good consideration. The argument has always been that consideration must be something of value in the eyes of law – something that provides or brings about a legal benefit.

    Perhaps i am wrong but although we often term Practical benefit with WvR its conception (but perhaps not terminology) was with Denning. So ahead of his time was our Denning... Reading into Denning would also suggest this...
    Offline

    0
    ReputationRep:
    Woah your post has changed dramatically, gimmie a sec
    Offline

    0
    ReputationRep:
    (Original post by AdamTJ)
    I don't fully accept what you're saying. Someone like Atiyah would argue that Stilk v. Myrick was decided as it was because of the absence of a well-developed action of duress. Consideration, therefore, was used as an indirect device to combat the problem of the sailors holding the Captain to ransom. Whether you accept this or not (and I don't), the Court in Williams v. Roffey were clearly influenced by this mode of thinking.
    An earlier post of mine suggests the same reasoning, only so much less eloquently! I havent taken the effort to explain it this well... Also i tend to agree with Atiyah and Mckendrick on this one! (out of interest, to expand my narrow horizon why dont you accept this?)

    Duress is like a three legged table without consideration, it needed the support...
    Offline

    0
    ReputationRep:
    (Original post by L-J-B)
    Foakes v beer is relevant because it concerns pre-existing contractual duties. Williams v Roffey defines a much more encompassing role for consideration allowing it to be used in cases which we would usually have probably argued duress. This is arguably because duress isnt a particuarly well equipped area of law.
    I believe we made the same point, only i made it in haste at an ungodly hour for contract law..
    Offline

    2
    ReputationRep:
    (Original post by L-J-B)
    I believe we made the same point, only i made it in haste at an ungodly hour for contract law..
    Right I'm now with you on the Denning point. He never used the word "practical benefit" but his approach in a succession of consideration cases did suggest he agreed with it. The problem was, his view was never accepted by the H of L, or even other members of the C of A. That's why Williams v. Roffey is such an important (academic) judgment; although the irony is, in real terms, it makes little difference because legal, as opposed to practical, benefit is so easy to achieve anyway.

    It's not quite the same point, although I may have misunderstood. My point is more, by the late 80s/early 90s, there was a reasonably well-developed action of economic duress (see the judgment by Mocatta J in North Ocean Shipping v. Hyundai), which the Court could have used if they had wished. The C of A, however, decided, that this wasn't an incidence of duress because Williams, the carpenter, genuinely needed the money to complete the work. The case, therefore, didn't turn on duress at all but whether the consideration he had provided (i.e. the practical benefit to Roffey) was good. Had, there been duress then regardless of whether there was good consideration for the purported variation of the contract, it would have been voidable and probably rescinded by the court, although of course, had been a total failure of consideration, it could be argued there would have been no need to rescind- it's a bit of a chicken and egg scenario.

    Re why I don't accept the point about consideration being used as a substitute for an action of duress by Lord Ellenborough in Stilk v. Myrick- there was a similar case called Harris v. Watson decided in 1791 in which Lord Harris held the sailors couldn't recover specifically because it would be against "public policy" (i.e. duress). He didn't even examine the consideration point. Lord Ellenborough could have used this reasoning easily- but instead he went badly off-piste. It was also a decision out-of kilter with the prevailing conception of consideration at the time which was "moral consideration" (never mind about that though- it's a bit of a niche legal historical point). You might remember there were two reports for Stilk- one by Campbell and one by Espinasse. Campbell's, which is the one popularly accepted, holds that the sailors' action failed for lack of consideration. On the other hand, Espinasse's seems to suggest that Lord Ellenborough did in fact agree with Harris v. Watson. My own (slightly controversial) view is that Espinasse actually got it right.
    Offline

    14
    ReputationRep:
    (Original post by L-J-B)
    It is the view of many academics, as mckendrick argues, that duress was indeed 'arguable' in Williams v Roffey- yet to comment on this would be missing the point.
    Because duress was never argued in Williams v Roffey therefore i would neither comment on whether duress was present or in what sense it was present if it was (if that makes sense?)
    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.

    Consider Glidewell LJ:
    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.
    (emphasis mine.)

    And also Russell LJ:
    There is no hint in that pleading that the defendants were subjected to any duress to make the agreement or that their promise to pay the extra £10,300 lacked consideration.
    Finally, Purchas LJ:
    The modern cases tend to depend more upon the defence of duress in a commercial context rather than lack of consideration for the second agreement. In the present case the question of duress does not arise. The initiative in coming to the agreement of 9 April came from Mr. Cottrell and not from the plaintiff. It would not, therefore, lie in the defendants' mouth to assert a defence of duress.{...}In many cases it obviously would be and if there was any element of duress brought upon the other contracting party under the modern development of this branch of the law the proposed breaker of the contract would not benefit.
    (Original post by L-J-B)
    Consideration (currently) IS required to vary a contract, the question is what constitutes good consideration. Several (denning) cases purport to define this 'practical benefit' as a way to construct a form of good consideration where there was none in the 'conservative' sense (and so create a just outcome case by case whilst defining the shape of consideration into what denning saw as a more efficient modern role. What a legend.). By changing the role of consideration in such a way 'overlaps' on where many academics forsaw the role or progress of duress.

    By arguing duress over consideration to cover this area of law is how i see you distinguish out of williams v roffey. It may not be a particuarly elegant solution however it is aimed at the moot.
    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.)

    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.

    (Original post by L-J-B)
    Practical benefit is not only 'open to debate' but its entire role within english law is questionable.
    With this I'd quibble. 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.

    (Original post by adamTJ)
    x
    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.
    Offline

    0
    ReputationRep:
    (Original post by AdamTJ)
    It's not quite the same point, although I may have misunderstood. My point is more, by the late 80s/early 90s, there was a reasonably well-developed action of economic duress (see the judgment by Mocatta J in North Ocean Shipping v. Hyundai), which the Court could have used if they had wished. The C of A, however, decided, that this wasn't an incidence of duress because Williams, the carpenter, genuinely needed the money to complete to work. The case, therefore, didn't turn on duress at all but whether the consideration he had provided (i.e. the practical benefit to Roffey) was good.

    When you say, 'well-developed action of economic duress...which the Court could have used if they had wished' are you refering to in Williams v Roffey? If so duress was not at all argued so the courts could not have applied any cases relating to duress. Duress wasn't even raised obita (that could be wrong! but i dont remember seeing it Have since been shown i was wrong!)

    It is my (somewhat limited) understanding that it could still fall within duress (as an argument) even though williams the carpenter genuinely needed the money. It 'May' have produced a different outcome, something which the CoA doesnt really concern itself too greatly with. Just because Williams came to court with 'clean hands' so to speak i do not think we can assume this is a reason for utilising consideration in such a way. As duress was never argued that is the reason why, 'this wasnt an incidence of duress'. (not because the carpenter genuinely needed the money)


    No need to rescind? There wasnt 'really' any consideration, it was constructed by the courts. Roffey didnt rescind the contract, he payed.

    (Original post by AdamTJ)
    Re why I don't accept the point about consideration being used as a substitute for an action of duress by Lord Ellenborough in Stilk v. Myrick
    Sorry i may be confused but i thought it was consideration being a substitute for duress As a result (and therefore after) Williams v Roffey. That Williams v Roffey paves a new role for consideration- which tries to concern itself less with the intentions of the parties (instead finding a practical benefit) than would be the case in duress (which the court has stressed is not favourable or practical). Something which i find it is marginally better equipped to deal with than duress... Both seem to fall at the same hurdle however consideration is already a (murky yet) solid area- Why taint duress...
 
 
 

University open days

  1. University of Bradford
    University-wide Postgraduate
    Wed, 25 Jul '18
  2. University of Buckingham
    Psychology Taster Tutorial Undergraduate
    Wed, 25 Jul '18
  3. Bournemouth University
    Clearing Campus Visit Undergraduate
    Wed, 1 Aug '18
Poll
How are you feeling in the run-up to Results Day 2018?

The Student Room, Get Revising and Marked by Teachers are trading names of The Student Room Group Ltd.

Register Number: 04666380 (England and Wales), VAT No. 806 8067 22 Registered Office: International House, Queens Road, Brighton, BN1 3XE

Write a reply...
Reply
Hide
Reputation gems: You get these gems as you gain rep from other members for making good contributions and giving helpful advice.