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    (Original post by jjarvis)
    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 would not find it so safe to assume duress had no prospect of success. It is still debated academically whether an argument of duress could have developed duress to cover the same legal issues that practical benefit purports to resolve. Duress was not equipped at the time to support these issues, '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.' however many academics believe that duress, if applied, could have developed to cover this legal issue.
    Just because there was no action of gross negligance does not mean there was no gross negligance. We again cannot make that assumption.

    Practical benefit, as far as i am aware, is currently unresolved. The issue has not arisen since. I would find it difficult to with any certainty assume it is well established from 18 years, and the CoA has since been unable to distinguish from foakes v beer (HoL) in Re selectmove. This suggests the law is uncertain of its future and anything but well established.


    Im unsure if it has arisen but promissory estoppel sounds like a likely shield to all this. I somewhat support the notion of practical benefit however feel the courts jumped a little ahead of themselves. I believe such a solution could have been found within duress with somewhat better footing. This bending of consideration only furthers the arguments questioning the importance we place on consideration and whether we should in fact rely on it as a doctrine at all.

    I realise im crossing pens a little out of my league. You may not have your notes but im yet to venture to university!
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    (Original post by L-J-B)

    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.
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    (Original post by jjarvis)
    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.
    Thanks, Hope the revision goes well.. If revision ever can!
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    (Original post by jjarvis)
    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.
    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.

    (Original post by jjarvis)
    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.
    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.


    (Original post by jjarvis)
    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.
    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.

    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?
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    (Original post by AdamTJ)


    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 it may have been clear i was unsure on where equity stood with regards to this, so thanks for explaining!

    I would disagree that practical benefit has settled in! Mckendrick,'This failure to provide a coherent, fresh analysis of stilk in the light of williams further underlines the confusion which currently exists in this area of law.'


    I never suggested that Practical/Factual benefit arose as a replacement to economic duress merely that it developed to resolve a certain reality of business- namely contractual variations that economic duress may itself have covered. The reason i believe duress was not well equipped to deal with it (supported by Glidewell LJ in WvR who claims duress doesnt reflect modern reality) is in the method of finding duress, and the risk of courts getting bogged down with the true intentions of parties. Duress could have been developed in this case to cover the circumstances, surely? The role (Glidewells 6 'rules') WvR outlines for consideration wasnt arguable before WvR... so to speak.

    Phang since argues,'...the doctrine of economic duress ought to displace, and not be in addition to, the doctrine of consideration in "extortion situations".'

    This suggests to me that consideration is playing a role now deemed for duress.

    Although they cited Campbell i too agree that in the court in substance followed Epinasse's report.


    'If a finding of duress would have been made' As it was never a defence run it could never have been made... Academically would it have reached the CoA had duress been run?

    In my inexperienced mind their Lordships viewed the case and consequently decided duress was not present. If they wanted to find duress, if it was argued, they would have been entitled to?

    Hopefully university will help me refine both my arguments and my thoughts...
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    The passage you are referring to is this one, per 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.
    Glidewell LJ was not talking about the unsuitability of the action of duress here. Also read his comments about Lord Scarman's judgment in Pao On v. Lau Yiu Long if you need convincing about this point. Their Lordships were satisfied that duress was now a well-developed action. The passage quoted above was an (implied) criticism of consideration and was used as a justification for the "refinement" of the rule in Stilk v. Myrick.

    In W v. R, the argument their Lordships essentially relied on was thus. Stilk v. Myrick, which is quite a draconian judgment, had developed in the absence of coherent action for economic duress. By the time W v. R was decided, however, economic duress was sufficiently developed so that, in similar incidences where there was no duress, the consideration rules could now be relaxed.

    Phang is right; the doctrine of economic duress should displace, and not be in addition to, the doctrine of consideration in "extortion situations". Nothing that the judges said was contrary to this. The whole point is, this was not an extortion situation. If it had been, then the rules relating to duress would have applied, not consideration (as I have now attempted to explain exhaustively). Put simply, consideration is not playing the role duress should at the moment and I don't agree with what you're saying. But it's a good argument!

    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.

    As for your last question- I don't know if this is the case, but the issue of duress may well have been argued at first instance, in the High Court and rejected. Remember, in an appeal, you only take the points you think you have a realistic chance of winning on. It may well have been decided by Counsel for Roffey that it wasn't a live issue on appeal. So the answer is yes- it probably still would have gone to the C of A, purely on the consideration point. And yes- even it wasn't pleaded, the judges still could have found there was duress. They have a funny habit of doing whatever they want and if they were minded to, they could have taken that point.
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    (Original post by AdamTJ)
    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.
    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.

    (Original post by AdamTJ)
    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.
    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.
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    (Original post by AdamTJ)

    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.
    Both atiyah and mckendrick argue that whilst citing Campbell's report 'in substance' they followed Espinasse's, 'The court chose to cite Campbell's report but in substance they followed Espinasse.' I believe this refers to the fact that there really should have been good consideration to find the duress... thats an educated guess however off the top of my head

    My point initially was that consideration was used to resolve a legal issue that could have been covered by the doctrine of duress if their Lordships had so wished. The fact that there is no duress in WvR is irrelevant to this. I believe David Donaldson supports this, 'law of consideration is no longer used to protect a participant in such a variation. That role has passed to the law of economic duress, which provides a more refined control mechanism...' which to me says in subsequent cases we shall apply duress rather than consideration

    I do realise that it is in fact not quite so simple, Duress providing a different outcome (voidable rather than void) and the fact they perform different functions - duress being a vitiating factor rather than questioning a contracts conclusion.

    If i may run a 2nd argument (of subtle variation) on why i do not think duress was equipped to handle such instances posed in WvR- Without the pragmatic approach to consideration suggested by WvR duress cannot comfortably perform. It is suggested stilk should be interpreted that there was good consideration and to then set aside the contract with duress. Whilst this is not a universally accepted way to interpret stilk it is not without academic merit.

    I believe i must actually hold my hands up and say, despite me putting forward the further arguments above, your post caused me to open a book on duress (which i havent looked at for a good 2 years(other than quotes this has all been, fairly obviously due to my massive errors, off the top of my head) and find that it is probably consideration that is in fact not very well equipped to deal with contractual variations that may be as a result of duress (in considerayions harsher guise- adequacy and sufficiency- Oh how it all comes flooding back) and duress is brought (as a newer doctrine) in to support consideration! The pragmatic approach in finding consideration (ie practical benefit) allows the contract to then potentially be set aside with duress!

    -i think this is perhaps closer to 'correct' (even if not technically perfect)



    I, in my haste, have been (as you frustratingly know) arguing the opposite which is no doubt why iv looked oh so confused! I do hope my efforts have been somewhat credit-worthy even if slightly misplaced!

    Perhaps WvR is suggesting that consideration should only need be found in the formation of a contract and not in the modification of a contract? That duress is good and strong!

    Thank you for humouring me however and taking the time to respond. I really have found it helpful and entertaining (even if the OP has found it less so!)
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    (Original post by jjarvis)
    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.
    Ye that sounds right. It's not pedantic, it's an important distinction- was a bit of a slip by me!
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    (Original post by AdamTJ)
    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 seem to recall the CA in Baird Textile Holdings held that they felt bound to follow Combe v Combe. This makes any argument based on the speculation in Roffey rather difficult to sustain. I'd agree that we're going to have to wait for the SC to consider consideration before the mess is sorted out.
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    Hi there

    Can anyone help me as i am a bit confused,what topics do u guys think come under modification of a contract as i keep gttin confused with offer,acceptance and consideration which is formation of a contract right ?

    Many thanks x
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    (Original post by jjarvis)
    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?
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    (Original post by bristollawstudent)
    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?
    A promissor's request for more money for completing a pre-existing contractual duty raises the possibility that economic duress vitiates the promisee's consent to pay more.

    There's quite a good analysis of the case, and the implications of economic duress, in Anson's Law of Contract (2010, 29th edition), at 108-111, though I expect it's also discussed thoroughly in Treitel or Chitty.
 
 
 
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