The basic purpose of contract law
The basic purpose of contract law is to provide a framework within which individuals can freely contract. The contract can legally bind the contracting parties by the creation of laws which are applicable only to the very individuals that create the contract and its subsequent legally binding laws. English contract law has developed through the ages as a common law which is very heavily based on precedent. Arguably, the pioneers of the common law system must have opted for such a means of dispute resolution, because it is much more amiable and flexible than having a set of codified rules. Yet, this has placed the English common law in quite a detrimental predicament as United Kingdom finds itself surrounded by civil law practicing states in the European Union. Harmonisation is proving to be more conciliation of legal sovereignty for the common law system than the civil law system.
Contemporary developments in the European market place have poised a great challenge to all separate legal jurisdictions within the European Union. ‘Divergent contract laws create problems for the single market of the European Union'. Nevertheless academics like Dr. Martin Doris, now of the School of Law at the University of Glasgow is opposed to solutions based on a European Civil Code. Adherents of Dr.Doris' argument hold indefatigably to the belief that such an endeavor might be an academic blunder. The common fear is that such a civil code might lead to the destruction of age old traditions. Hence all jurisdictions have experienced an immense inertia to the movement away from older doctrines. One such doctrine that has caused problems for the English is the need for consideration when forming a contract. Especially since consideration has come under attack by the European Union, arguably because it is a doctrine unique to common law and the civil law lawyers of Europe have trouble with the proper comprehension of the doctrine. Even when they do seem to comprehend its practical mechanism properly, they fail to understand the need for it. Perhaps this is because, as a legal academic and leaner, they build their knowledge of contract law without the understanding of consideration as a fundamental element to the existence of a contract. PECL, is a clear indication that they do not understand the fundamental importance of consideration, especially since it impliedly negates the need for consideration and replaces it with the civil law notion of Causa.
This document will take a deep look in the aforementioned doctrine of consideration, look at the difficulty caused by this doctrine, the valiant attempts of certain judicial activists lead by Lord Denning to fill in the intrinsic gap of justice created by consideration. Noting that they relied on an equitable notion of estopple, we shall explore the doctrine termed “promissory estopple”, the limited scope of promissory estopple and the still existing gap of justice in the enforceability of promises in English law.
A comparative mode of analysis comes into play when exploring the approach taken by other jurisdictions, namely, France, America and Australia. We look at the French notion of Causa, and discuss the proposition as impliedly put forward in PECL i.e. whether or not Causa can be a replacement for the doctrine of consideration. If Abolition of the doctrine as implied by PECL, is not the answer, we need to reform the doctrine in order to justify its retention. Thus New York's radical experiment by the reform of consideration between 1934-1941 would be a good starting point for the discussion of reformed retention. Furthermore, the Australian solution by the Unification of Estopple will be discussed, as another means of reformed retention. Comparisons can be drawn between the English notion of estopple and the Australian notion of estopple in order to discuss whether or not, unification of estopple in the English system would be, if at all, beneficial for the English jurisdiction.
Nonetheless the argument is put forward that unconscionability is an underlying principle in English law and if the courts moved towards using the language of unconscionability in the dispute resolution of promises, the intrinsic gap of justice created by consideration will be nullified. The main drawback would be the blurring of certainty and distinction between common law and equity, these discussions will be dwelled upon in much greater detail further down the document.
Finally, PECL, the impending annulment of this discussion is considered. It is reasonable to assume that PECL is where English contract law will wind up, in the day and age of harmonisation of rules and regulations in EU jurisdictions lead by the courts European Court of Justice in Luxembourg. Detailed discussion shall be carried forward as to the impact and practicality of PECL in England and Wales.
And this author seems to align in defence of consideration, as it is one of the most fundamentally important certainties of a contract.
The Certainties Of Contract- The Need For A Legally Remarkable Promise.
If the law suggests that every individual has the freedom to contract, should the law impose restrictions on this liberty by demanding certainties of contract? It is almost absurd to suggest that an individual must be able to enforce every promise made upon him in a court of law. If such a situation were to be imposed upon society, the law governing promises would be cluttered with confusion and ad hoc decisions that leave no room for the practical certainty we need in today's liberal democratic free-market environment. It is hard to imagine any sort of harmonious rules that would allow all promises to be enforced. This is where the certainties of contract stem from; a need for a promise to be so profound, that when it is misapprehended or mistreated, it gives rise to the relief and remedy for an individual's detriment in the eyes of the law. For this, the courts needed uniform certainties so that they can police the enforcement of promises. Uniformity in the laws has a further demand from society, so that as a promisee one could ensure that the promise made upon them would fit in the ambit of what the law regards as a legally remarkable promise i.e. typically a contract.
The certainties of contract in English law are:-
2) Acceptance of that particular offer
3) Consideration and;
4) an intention to create legally binding relations.
Out of these certainties, the most academically troublesome doctrine which has witnessed a flood of, both support and critique from academics and judges alike is consideration.
What Is Consideration?- A Botch By Definition?
According to Sutton the origins of the legal systems of the modern world can be classed into two main categories.
1) The system in England, followed by the British common wealth states and the United States of America that have there origins in the tradition of English Common Law.
2) The laws in the States of continental Europe, their former colonies or spheres of influence overseas derived directly or indirectly from the Roman law system into a civil law.
Neither system tries to impose the intolerable burden on society of rendering every promise enforceable. Yet both systems have developed avidly different and unique methods of enforcing promises. ‘The civil law has developed a criterion that is bound up with the doctrine of causa and with the intention of the parties, while in the common law has evolved that “insular and unique phenomenon”, the doctrine of consideration, as the test of enforceability of promises'.
As per Windeyer J. sitting in the High Court of Australia said Coulls v Bagot's Executor and Trustess Co. Ltd
“The common law develops, but not looking back to an assumed golden age. I have said elsewhere that the “the only reason for going back into the past is to come forward to the present, to help us to see more clearly the shape of the law of today by seeing how it took shape””
Therefore it is important to recognise where, how and why this so-called “insular and unique phenomenon” came about.
Consideration develops historically through the form/formality of a contract. In early deeds a seal was used to emphasize the legal significance of a promise. This would usually be the means to find out whether a deed was significant enough in the Court of King's Bench. In the Court of Common Pleas, the more practical question arose, whether a party could recover a sum certain promised in return for the services rendered or goods supplied. This form of action was known as a ‘debt'. If the promise was executory then it was known as ‘detinue'. Where as in the Court of King's Bench, there wasn't much interest in common law until the slow evolution of the favorite tort action of trespass, trespass on the case, in which it was alleged that something was undertaken- which in Latin meant ‘assumpsit'.This new action brought the lawyers from the Court of common Pleas to the Kings bench and a new action known as ‘indebitatus assumpsit' evolved. One theory is that consideration is the requirement of a detriment to the promisee necessary to maintain the action of indebitatus assumpsit. There are many arguments to the actual history of the doctrine of consideration. The aforementioned historical analysis seems to be most plausible as it is backed up with historical case reports. The point is taken that these case reports are rather sketchy and a number of years elapse between each report. Hence other theories of its evolution are discussed below.
One school of belief is that doctrine was borrowed by the Chancellors from the Roman law causa and after modification in equity passed into the common, though this has been generally discredited now. The other line of thought is that the seeds of the doctrine lie in the quid pro quo of debt. Whist a fourth view maintains that it is a compound doctrine of many other early doctrines, therefore it is impossible to refer to a single source in order to point out it's origins. There is no agreement as to the origin of consideration. Unsurprisingly we find that the very nature of the doctrine itself is subject the same fate.
Nevertheless, most English contract law textual commentary books' omission to discuss the original meaning and very nature of consideration seems to falsely suggest the definition set out by Lush J in Currie v Misa was a definition that reiterated a doctrine set in stone and is sufficiently what a law student needs to know as the earliest point of reference to the meaning of the doctrine. Whereas, agreement to consideration's origin in reality is hotly debated, hence there is a need to go even further than Currie v Misa to look for an earlier definition of consideration, to understand it's original meaning. The aforementioned definition by Lush J is:-
“A valuable consideration in the sense of the law may consist either in some right, interest, profit or benefit accruing to the one party, or some forbearance, detriment, loss or responsibility given suffered or undertaken by the other”.
The reason why an analysis of the historical development is emphasized is because this statement originates from a writers opinion published in the Comyn's Digest. Like Ames points out, this idea goes back to at least 1588 and is explicable by the increase in plaintiffs presenting their cases around the assumpsit and indebitatus assumpsit. Therefore assuming that consideration is bound up in the concept of a bargain inherent in it from its very conception, the definition set out by Lush J, is deficient. Not enough emphasis is given to the significance of the slight alteration that the definition was subject to when Halsbury took to define consideration, inserting the accretion at the end ‘at his (promisor's) request'. This clearly suggests that the detriment suffered by promisee must have been requested by the promisor. This line of thought takes to theoretically explain consideration, not within the framework of the bargain theory but as an analysis of the benefit and detriment occurring during a promise.
The exclusion of these three words from the definition of consideration was probably unintentional. The accretion in the Halsbury text was intended, but the removal seems to have occurred due to an over emphasis on Lush J's definition of consideration. Unintentionally this widens the scope consideration and makes consideration a lot more feasible in reality. Almost unavoidably, this increase in feasibility gives rise to more definitional problems.
After the unintended omission, any detriment of the promisee though not foreseen by the promisor still gives rise to a valid consideration. Later developments like the rule in Foakes v Beer and the fierce debate by academics like Ames, Williston and Pollock about the very nature of the doctrine makes the point clear that this very nature of the doctrine is not as certain as usually perceived. Even the theoretical explanations differ to the core, where one explanations fashion its words around a concept of a bargain and other follows the concept of benefit-detriment analysis. Following Lush J's deficient definition has caused a botch of the precedent. Hence most authors seem to ignore any authority prior to Currie v Misa. Suspiciously, Currie v Misa makes consideration less of a botch if the other older precedents were ignored. Reverting back to the Halsbury definition would definitely make consideration less ambiguous but probably indefensible due to its impracticality. Hence, this author likes the definition in Currie v Misa, yet still believes that thought not a botch by definition, consideration still needs to be amended to increase its practicality, just as it amended itself for practicality as discussed above.
There should be a filling of what the author refers to as “The Gap” in this article.
The Problem With Consideration- “The Gap”.
Assuming the position that a need for the certainties of contract arose from the need for the uniformity of the law and to curb unnecessary litigation over legally unremarkable promises, it can be argued that the need for consideration is having the opposite effect. If we take the recent case of Baird Textile Holdings Limited v Marks & Spencer Plc and alter the facts situation a little, to suppose that the court accepted an implied contract between Baird and M&S by way of necessity as stated by Bingham LJ in The Aramis , it would create an ideal facts situation to expose “the Gap” created by consideration. In English law the lack of consideration moving from Baird to M&S for that specific promise (made by M&S not to terminate their relationship with Baird without reasonable notice) would fail to be legally enforceable. This is ‘the Gap', though the promise seems prima facie gratuitous, it has induced a particular understanding from Baird and thus induced a particular behavior from Baird, which M&S are able to exploit as there has been no price paid for that promise, though both parties had a mutual understanding of this promise. The gap allows legal technicalities to be used as an engine of fraud.
Whereas in French law we could conclude that there is sufficient Causa to create legally binding relations, and in the Australian jurisdiction the promisee could rely on an estopple claim to prevent the promisor from going back on his promise and in all common law practicing states of the United states of America, since the promise did induce an act on part of the promisee, the claim would not fail for lack of consideration. It is easy to find absurdity in the notion that a gratuitous promise - made outside the scope of the bargain, yet one that played a vital role in inducing the promisee to the contract/ or to act differently, cannot be enforceable. This is not to suggest that every gratuitous promise should be enforceable but at least those made in the context, where parties where already inclined and in general understanding that they were indeed going to have legally binding relations must be enforceable. Since ‘the Gap exists', many civil law lawyers argue that there is no need for consideration, that it gives rise to unnecessary litigation and illogical outcomes. The common law needs to defend consideration by filling in this gap.
Do We Need Consideration?
The question posed here has been argued for and against by many academics. To truly ascertain a practically plausible answer to the question accurately, one needs to reconcile the need for consideration with the need for the certainties of contract. Henceforth, one needs to ask “Does consideration increase the certainty and uniformity of law. Moreover, does it aid in weeding out the legally unremarkable promises from giving rise to unnecessary litigation in the courts?” In order to answer the question posed the current English position on consideration and estopple need to be examined As the discussions unfolds one can avidly observe that this author is of the stern view that consideration is one of the most remarkable achievements of the common law jurisdiction and is absolutely necessary for English contract law. Yet in order to retain the doctrine, there needs to be a reform. This author finds the most plausible solution by the reformation of estopple and the retention of consideration.
Causa- A French Replacement For Consideration?
Causa is the general requirement for a cause to contract. This may seem far too wide and essentially give rise to every promise being enforced in the courts even without the quid pro quo of debt. For a common law lawyer it seems almost absurd to classify such a broad range of promises as legally remarkable. Nevertheless, this is the standard maintained by most civil law practicing states and is has been speculated that the origin of Causa lies in the Roman law system.
Causa remains entrenched in the civil law systems. Examples of this are Austrian, French, Belgian, Luxembourg, Italian, Spanish jurisdictions.
The Austrian notion of Causa signifies the fiscal or purely economical purpose of a contract, which has to be vividly transparent from the contract or from the circumstances. A promise without any apparent fiscal purpose is considered to be void. For a common law jurisdiction that has unshakable roots stemming from the 19th century notion of laissez faire, this notion of causa is far too narrow and restrictive. Such a regime will be met with antagonism as it infringes the right to the freedom of contract of every English citizen. On the other hand, the French notion seems more interesting, it is universally accepted that there is no set definition for the French notion of Causa.
“Many authors distinguish the “objective and abstract cause” that would apply to all parties to a contract of a particular type (e.g. in a contract of sale, to obtain the property or the money) and the “subjective and concrete cause” or motive (e.g. the seller sells the property to raise money to pay his debts, or the buyer buys property in order to smuggle it out of the country) see. E.g. Terre, Simler & Lequette Nos.312 ff. A contract will not be valid unless it has an objective and abstract cause; the mere intention to incur an obligation is not sufficient. If for example the cause is erroneous, the contract will not be valid. Thus a person who has promised to pay a debt, but who had forgotten that he had already paid it, is not obliged to do so, because his obligation had a false cause, see notes to Article 4 :103 on Mistake as to Facts or Law. Under the second aspect the cause must be legal. Therefore, the sale of an object intended to be used for committing a crime is void.”
This appears to be an objective test of the cause that gives rise to an intention to create legally binding relations. The concept of consideration and the French concept of Causa are two very different ideas. For a commentator to try and compare the two ideas is almost absurd as these two concepts are tests for two separate limbs of a contract. Consideration is more or a less a price of a contract/promise, where as Causa is a cause/reason to contract. This author speculates that, the reason why French law does not have a need for consideration is because of the nature of law practiced in France. The French have a civil code, and in order to ensure that a promise is legally remarkable all an individual has to do is ensure that his promise falls within the ambit of the civil code articles 1103 and 1104. Thus the Causa is a framework for ensuring that the individual had a legally valid reason for making sure that the promise fell within the ambit of the civil code. On the other hand English law tries to accommodate any promise that gives rise to an obligation; hence consideration is still valuable to weed out the legally unremarkable promises made during the everyday realities of life. One major drawback of having a strict doctrine of consideration is that sometimes the result may not produce the most just outcome. Unless consideration gives rise to absurd outcomes, there is no need for reform. Yet, “the Gap”, is definitely an absurdity that needs to be revised.
Over all, it is fitting for a common law practicing jurisdiction such as ours to adopt the civil law idea of Causa, as a replacement for consideration. It is accepted that it may be useful in allowing the courts to negate some legally unremarkable promises. Thus, if adapted alongside the notion of consideration, this could be feasible. The courts have been clever in negating promises without a valid cause by using the terminology of consideration. If Causa is adapted, the courts can use this as a tool to negate promises without a valid cause. Therefore, rather than clinging on to the language of consideration to negate promises without a valid cause, the judgments can be about the new-limb i.e. Causa. Thus the concept of consideration can be straight forwardly about the quid pro quo of a debt/promise and the problems created by using the language of consideration to negate promises without a valid cause can be avoided.
Yet with the impending imminent threat to consideration by the EU i.e Pecl? Art 2.101-discussion- about how civil lawyers need to understand common law's predicemnet w/o consideration.- common lawyers need to explain.
Current Position In English Law
As the current position has been supported by the judges like lord Steyn writing in an extra-judicial capacity arguing that the doctrine needs no major reform since the current position is not intrinsically defected and that the courts must only lead into a major reform only when there is a major intrinsic defect when the doctrine operates in practice, we must critically analyse the position we are in today. The arguments put forward by the cautious English judiciary tend to mostly be in alignment with the ultra-conservative position. Much adherence is shown to Professor Treitel defence of the doctrine as a counter-attack to Professor Atiyah's all out offensive attack on the doctrine.
As any contract law text book will be able to more or less guide one through the current requirements, there isn't much use of reiterating the obvious. Thus there isn't much necessity for a deep exploration of the current position but this author is of the view that the doctrine does have some basic defect which cannot be exposed without a review of its current operation.Hence a swift overview of the doctrine will be done below.
It is disputed whether there are a set of strict rules governing the doctrine of consideration. Such propositions are strengthened by the arguments like that of Professor Trietel that consideration is very flexible and as he describes it, consideration lives on by practice of ‘inventing' consideration. A more pessimistic approach to this argument is that such invention of consideration is only necessary because of the insufficient nature of consideration to reflect the reality of the legal remarkableness of a promise in modern society and markets. Nevertheless, there are seven limbs which can be listed from a pick and mix of the legal precedent that exist in this area of law which is still of positive judicial deliberation.
1) Consideration needs to be of some economic value but it is sufficient that it is adequate and does not really matter even if it is trivial.
2) The general rule is that past acts cannot constitute consideration yet previous requests can constitute consideration though exceptions arise in business situations and parliament has intervened to create an exception in cases involving a bill of exchange.
3) Consideration must move from the promisee to the promisor but not necessarily from the promisor to the promisee.
4) A consideration may arise from an actual forbearance and a promise to forbear can also constitute valid consideration. On the other hand the forbearance can't be only moving from the promisee, it must move from the promisor.
5) A valid consideration cannot arise from performance of a pre-existing (i) public or (ii) contractual duty unless the performance gives rise to a practical benefit for the (i) the promisor or (ii) to a third party.
6) The general rule at common law is that the aforementioned performance doesn't constitute valid consideration. This is because the payer is already obliged to pay the full amount, an agreement based on the same principle as Stilk v Myrick. It also protects a creditor from the economic duress of his debtor. In Pinnel's Case the lords held that a free standing part-payment was not valid consideration. However, it was also held that the concurrence to receive part-payment can be binding if the debtor, at the creditor's request, provided some fresh consideration and that could be in the guise of:
Part payment on an earlier date than the due date; or
Chattel instead of money that is more beneficial than money; or
Part payment in a different place to that originally specified.
In Foakes v Beer the House of Lords held that the creditor was permitted to recover the interest which had accumulated on a debt. They re-enforced that a promise that had no valuable consideration cannot be relied upon to stop the creditor from enforcing his full legal rights.
The rule was recently affirmed by the Court of Appeal In Re Selectmove, and refused to extend the principle in Williams v Roffey Bros & Nicholls (Contractors) Ltd and limited the scope of this rule. Yet clearly this is a conflict of precedents where the courts refuse to accept the part payment of a debt as a practical benefit for the creditor. It was held that a promise to perform an already outstanding contractual obligation was not valid consideration. Secondly they appeared to act in a very ad hoc fashion looking at the particular facts of the situation to conclude that the promise was made without proper authority. Thirdly, they limited the notion of a practical benefit as only giving rise to good consideration only to cases involving the appropriation of goods and services.
7) The exceptions to the rule in Foakes v Beer, other than the abovementioned exception itself. First is arguably an additional limb to the rule in Pinnel's case(1) A promise to accept a part payment in full satisfaction will be binding on a creditor where the part-payment is made by a third party on the condition that the debtor is released from his contractual obligation. Secondly, the rule does not apply to composition agreements. Thought there is no consideration, the courts will not allow an individual creditor to sue the debtor in full. There are two reasons advanced for this rule is (i) that to allow an individual creditor to sue would be fraudulent on his part and (ii) the percentage set was agreed by all creditors. Thirdly and most importantly promissory estopplethis was the term coined for the equitable doctrine which has as its principal source the obiter dicta of Denning J in Central London Property Trust Ltd v High Trees House Ltd
Estoppel in English law today is rather confusing. Estopple has far too many distinctions between types of estoppels with different sets of rules governing it. Though this may be intrinsic in the mode in which equity operates, when such doctrines get incorporated into the common law, as Lord Denning did in High tress with promissory estopple, the mode in which the doctrine operates needs to change. The law demands far more certainty than equity and if English law holds on to the notion that there needs to be a distinction between equity and common law, the reality must reflect this. Though it is acceptable to have vague notions of fairness and equality governing equity, common law needs reasonableness and certainty. Therefore it understandable that English judges have been reluctant to follow in the footsteps of the Australian jurisdiction.
The doctrine provides a means of making a promise binding, in certain circumstances, in the absence of consideration. The basic gist of the principle is that a promisor is estopped from going back on his promise if a promisee acts upon it and it is inequitable to do so. The modern doctrine is largely based on obiter dicta of Denning J in Central London Property Trust Ltd v High Trees House Ltd and on the decision of the House of Lords in Tool Metal Manufacturing Co Ltd v Tungsten Electric Co Ltd
The ratio decidendi of the case stated by Denning J was that plaintiffs could enforce full payment as their promise to accept only half was applicable only under war conditions. He stated in obiter that if the plaintiff tried to enforce full payment for the time between the creation of promise till the end of the war, though consideration was not constituted for the promise to accept a less amount, it was intended to legally bind parties and was in fact acted on. Therefore the plaintiffs were estopped from going back on their promise. Thus if a party promises not to insist on their strict legal rights, and the promise is acted upon, then the law will enforce the promise though consideration is absent.
(A) A legal relationship.
Naturally, the cases which followed high trees are cases concerning contracts and one would have a mistaken belief that a contract was necessary for the doctrine of promissory estopple to be apply. However, in Durham Fancy Goods v Michael Jackson (Fancy Goods) "a pre-existing legal relationship which could, in certain circumstances, give rise to liabilities and penalties" was sufficient in the absence of a contract. This notion was re-affirmed in Baird Textile Holdings Limited v Marks & Spencer Plc
(B) A Promise
The Scaptrade suggest that there must be unequivocal representation which amounts to a promise. However, the purported lineage of the doctrine goes beyond high trees and in Hughes v Metropolitan Railway the courts seem to have allowed an implied promise to give rise to promissory estopple.
The promisee must have relied to his detriment on the promise. There is some debate as to whether the promisee should have relied on the promise to their detriment or whether a mere alteration of his position would suffice. As in Alan Co Ltd v El Nasr Export & Import Co, Lord Denning says that "he must have been led to act differently from what he otherwise would have done". This seems to suggest that detriment is not an element of promissory estopple.
(D) Inequitable to go back on promise.
It must be inequitable for the promisor to revert back, unless the promise was made due to duress or undue influence by the promisee.
(E) Only as a defense
In Combe v Combe the court held that Promissory estopple can only be raised "as a shield and not a sword". Therefore it did not give rise to a cause of action. However, this was not followed in Re Wyven Developmentsby Templeman J, arguing that estopple give rise to a remedial right, hence a cause of action. Lord Denning in Evenden v Guildford City AFC favoured this approach, yet in Baird Textile Holdings Limited v Marks & Spencer Plc , the matter has contemporarily been put to rest by following Combe v Combe.
Baird Textile Holdings Limited V Marks & Spencer Plc
The Court appeal had the opportunity in Baird Textile Holdings Limited v Marks & Spencer Plc to widen scope of promissory estopple to have it so that it could give rise to causes of actions. As this case is very important in understanding the current position of English law in promissory estopple and the attitude of the judiciary towards change it is considered in some detail. It was as a prima facie simple facts case scenario;
Baird Textile Holdings Ltd (“Baird” or “BTH”) had been one of the principal suppliers of garments to Marks and Spencer plc (“M&S”) for thirty years when, on 19th October 1999 M&S, without warning, determined all supply arrangements between them with effect from the end of the then current production season. On 10th January 2000 Baird commenced these proceedings against M&S contending that M&S was precluded by both contract and estoppel from determining such arrangements without reasonable notice. M&S applied under CPR Rule 24.2 for summary judgment against Baird on the ground that it had no reasonable prospect of succeeding on either claim. On 29th June 2000 Morison J dismissed the claim in so far as it was based on contract but directed that it proceed to trial in so far as it was based on estoppel. Each party appeals, with the permission of Morison J, from that part of his order which is against it. Accordingly the issues which arise are whether Baird has a real prospect of succeeding on its claim based on (1) contract, and (2) estoppel, or, if not, whether there is some other compelling reason why that claim or issue should be disposed of at a trial.
The core of the case for Baird, in paragraph 9 of the Particulars of Claim, is that:
“In the course of establishing, maintaining and conducting its relationship with BTH, Marks & Spencer induced BTH to believe and implicitly promised that, in exchange for BTH agreeing
(a) to supply Marks & Spencer with garments year by year on a seasonal basis;
(b) to allow Marks & Spencer to be closely involved in the design and manufacture of the garments so to be supplied;
(c) to establish and maintain a workforce and manufacturing capacity sufficient to meet and be highly responsive to Marks & Spencer's continuing requirements;
(d) not to act in a manner which in the view of Marks & Spencer was contrary to its interests; and
(e) to deal with Marks & Spencer in good faith and reasonably having regard to the objective of the relationship, the relationship would continue long term and would be terminable only upon the giving of reasonable notice; and that during the subsistence of the relationship Marks & Spencer would acquire garments from BTH in quantities and at prices which in all the circumstances were reasonable and would deal with BTH in good faith and reasonably having regard to the objective of the relationship.”
That allegation is supported by copious particulars relating to specific aspects of the commercial relationship between Baird and M&S. Such aspects include
(a) close relationships between senior executives,
(b) regular consultations on strategy, sales, design, technology, quality and logistics,
(c) the appointment by Baird of managers selected by M&S to monitor relationships between them and to provide information to them,
(d) co-operation by Baird working to seasonal timetables laid down by M&S,
(e) carrying out procurement policies in a manner designed to benefit M&S,
(f) the implementation of an umbrella arrangement of an unusual sort whereby substantial advantages were conferred on M&S,
(g) acceptance by Baird of M&S requirements as to place and standards of production, approval of sub-contractors and other commercial associations both in relation to specific acquisitions and investment and generally, and
(h) the provision to M&S of confidential information.
Baird has a real prospect of succeeding in establishing each of the particulars along with the contentions made in paragraph 9 with one exception, the seasonal ordering practice
Baird avers that;
“Marks & Spencer deliberately abstained from concluding any express contract or contracts with BTH either to regulate the parties' on-going relationship or their respective rights and obligations season by season because it considered that it could thereby achieve much greater flexibility in its dealings with BTH than could be achieved under a detailed contract or contracts. The absence of such an express contract or contracts was accepted by BTH because, as Marks & Spencer knew and intended or ought to have known, BTH understood from the above pleaded conduct of Marks & Spencer that there existed a relationship between the two companies which was to continue long term and be terminable only on the giving of reasonable notice and under which the parties had the reciprocal rights and obligations pleaded in paragraph 9 above.”
Baird contends in paragraph 10 of its particulars of claim that in the circumstances the period of reasonable notice is not less than three years. It claims £38.5m for lost profits over that period and reimbursement for anticipated expenditure of £15.1m
Baird alleged breach of contract yet the Morrison J dismissed this allegation stating that:-
* “(1) A court will only imply a contract by reason of the conduct of the parties if it is necessary to do so. It will be fatal to the implication of a contract that the parties would or might have acted as they did without any such contract. In other words, it must be possible to infer a common intention to be bound by a contract which has legal effect. If there were no such intent the claim would fail.
* (2) All contracts, to be enforceable must be sufficiently certain to enable the courts to give effect to the parties' intentions rather than to give effect to a contract which the court has had to write for them. On the other hand it can be said that the Courts do not incline to adopt a ‘nit-picking' attitude to such matters and will endeavour, where possible, to construe the obligations in a way which gives effect to the parties' bargain. There is a line to be drawn between a generous attitude to making contracts work and striking them down on grounds of uncertainty… On this head of the claim I am satisfied that Baird's case in favour of an implied contract cannot succeed. In the first place, it would be unlikely that one could properly imply a contract when it is the pleaded case of Baird that M & S deliberately refrained from concluding any express contract because it could achieve greater flexibility without one. To imply a contract against such a party would seem to me to offend against the principle that the parties' conduct must show an implied common intention to create legal relations by contract....Were the alleged contract to have legal effect then the court would, to all intents and purposes, be making a bargain for the parties rather than seeking to enforce a bargain which they themselves had made"
It is clear that Morrison J would not support such an allegation of a breach of contract where, M&S deliberately intended not to have contractual relations with Baird. The vice chancellor (giving the leading judgment in the case) agreed with Morrison J in his speech and concluded the disputed point on the implication of a contract. He denied Baird from relying on an implied contract due to the trust induced by M&S's behaviour when dealing with Baird.
“I agree with the conclusion of the judge. The alleged obligation on M&S to acquire garments from Baird is insufficiently certain to found any contractual obligation because there are no objective criteria by which the court could assess what would be reasonable either as to quantity or price. This is not a case in which, the parties having evidently sought to make a contract, the court seeks to uphold its validity by construing the terms to produce certainty. Rather it is a case in which the lack of certainty confirms the absence of any clear evidence of an intention to create legal relations. The allegation in paragraph 9.28 also confirms the lack of intention to create legal relations for if there had been the requisite certainty because of the objective criteria then to that extent there would have been a detailed contract and a loss of flexibility. It cannot be said, let alone with confidence, that the conduct of the parties is more consistent with the existence of the contract sought to be implied than with its absence. The implication of the alleged contract is not necessary to give business reality to the commercial relationship between M&S and Baird. In agreement with the judge, I do not think that Baird has a real prospect of success on its claim in contract.”
Yet Morrison J was of the opinion that so far as the estoppel claim is linked, by paragraph 15, to the contract pleaded in paragraph 9 then to that extent it must stand or fall with the claim in contract. This was the conclusion of the judge. So far the vice chancellor agreed with Morrison J but the judge also determined that in so far as the estoppel claim was linked by paragraph 15 to “the relationship” it should go to trial. Though it was a positive step towards widening the scope of estopple in England and Wales, the vice chancellor was of the opinion that any new developments in estopple in England was not up to court appeal but for the highest appellate court in this jurisdiction i.e. the house of lords ( the supreme court of today). The court appeal held that it's duty was to apply the law as it was and dismissed the submissions by counsel for Baird as to widen the doctrine as established by the High Court of Australia in Waltons Stores (Interstate) Ltd v Maher and Commonwealth of Australia v Verwayen and permit estoppel to create causes of action in non-proprietary cases.
However the English law chose to stay in the position as explained by the Vice Chancellor:-
“The three decisions and the propositions they respectively established are (1) a common law or promissory estoppel cannot create a cause of action, Combe v Combe  2 KB 215 ; (2) an estoppel by convention cannot create a cause of action either, Amalgamated Investment & Property Co. Ltd v Texas Commerce International Bank Ltd  QB 84 and (3) accepting that a proprietary or equitable estoppel may create a cause of action it is limited to cases involving property rights, whether or not confined to land, Western Fish Products Ltd v Penwith District Council  2 AER 204 , 217.”
We can clearly see that English law seems have created a lot of artificial distinctions within estopple. Lord Denning's attempt in High trees has been limited all around to one kind of scenario. Judges have looked at Jorden v Money which tries to limit misrepresentation to only those of fact and not future intention, yet the High tree's case seems to be one where the promise was made for a future intention. It is hard to reconcile High trees with Jorden v Money. On the one hand English law demands that there must be a detriment i.e. consideration so that a promise can be legally remarkable and enforced in the courts. Yet, promissory estopple waives that need at equity. On top all this, the court of appeal in Combe v Combe has limited promissory estopple to just a defence. Proprietary estopple on the hand can give rise to a cause of action. Conventional estopple cannot. There seems to be too many distinctions without a difference. As the chief justice of the High court of Australia argues in Commonwealth v. Verwayen there is only one doctrine of estoppel operating in law and equity, the purpose is to avoid detriment to a party that has relied upon the accuracy of a statement or state of affairs. So why do we have all these different forms of estopple.
Differences Between Estoppels--Real Or Imagined?
Are the “ differences” between the various categories of estoppel such that they would prevent a common base? It has been argued that promissory estoppel has only been applied where there has been a pre-existing relationship between the parties.24 However, this argument does not appear to overcome the problem of Jorden v. Money that a representation of future intention gives rise to no enforceable rights in the absence of consideration. If the problem of Jorden v. Money can be overcome by the equities approach, it does not seem to be logical to hold that equities can only be created where there is a pre-existing contractual relationship. Unconscionable conduct can exist irrespective of the existence of a contract.
It is also suggested that a difference between estoppel by representation and promissory estoppel lies in the differing requirements of detriment.25 Estoppel in pais 26 requires the promisee to have altered his position so that he has done something which he was not previously bound to do and has suffered consequential damage or loss. Promissory estoppel, however, does not require detriment in this sense but only requires the promisee to have altered his position so that it would be inequitable27 to allow the promisor to act inconsistently with it. One example that is commonly mentioned is a situation where the promisee has refrained from taking any steps to protect its legal position. In a case of promissory estoppel this would be suf *Conv. 243 ficient to found an estoppel but would be insufficient for an estoppel in pais.
Two points should be made with respect to this argument. First, it is by no means clear whether in the examples given the alteration of position would not be enough to found an estoppel in pais. It has been noted in relation to common law estoppel that a representee is deemed to have altered its position not only when adopting a positive course of action on the faith of a representation but also when it has abstained from taking any measures for its protection, security or advantage.28 The lessee in Hughes, in refraining from taking any measures to repair the premises in light of the negotiations, may well have satisfied the element of detriment for a common law estoppel. Secondly, this is really a distinction without a difference. When will it be inequitable for the promisor to withdraw the representation? The answer will be when the promisee/representee has acted on the promise to its detriment. And detriment is shown when it would be inequitable for the promisor to withdraw the promise.29 It is submitted that in reality the detriment requirement of both common law and promissory estoppel is the same. If the differences between estoppel in pais and promissory estoppel are not decisive in refuting a common base for all estoppels, what of any differences between promissory and proprietary estoppel? It is said that promissory estoppel requires a precise and unambiguous representation, whilst proprietary estoppel can be founded on an implied promise.30 Nonetheless, promissory estoppel can be founded on an implied promise, and it has been said that “ promissory estoppel often arises not out of clear promises but from the conduct or behaviour or even inaction, of one contracting party, which leads the other to draw inferences about the first party's intentions.” 31 Similarly there are cases of proprietary estoppel where the conduct of the promisor/representor did not give rise to an estoppel because it was not capable in law of amounting to a representation.32 It is suggested that there is really one general principle; that the conduct of the promisor/owner must be such as to give rise to a representation, express or implied. In both proprietary and promissory estoppel lack of certainty will prevent a representation from being held to have been made.
A second difference suggested is the cause of action difference-- *Conv. 244 proprietary estoppel does, but promissory estoppel does not, give rise to a cause of action.33 This historical fact however should not form a reason for deciding whether a cause of action exists today, and to say that one gives rise to a cause of action and one does not is not helpful in explaining the reason for the difference. It is also argued that the element of unjust enrichment in proprietary estoppel cases is greater than in most cases of promissory estoppel34 ; this may well be true but it is submitted that it could be taken into account in deciding whether the defendant's conduct is unconscionable.
Proposals Of Reform Of Consideration
There is a range of opinion between academics on consideration, ranging from absolute complacency as shown by professor Trietal to utter disgust as shown by Atiyah's attack on the doctrine. Nevertheless some of the most ultra-conservative supporters of the doctrine accept that the doctrine is in need of some sort of reform. As Fifoot articulates the 19th century saw too formal generalization, and on too strict adherence to the legal principle, whereby the doctrine was converted into a fundamental article of faith to which judges hesitated to admit exceptions. Though apologists of the doctrine argue that consideration has aided to weed out legally unremarkable promises from being enforced in the courts, the convincing rhetoric of the test being too basic and unpractical is one that is easy to adhere to. Keeping in mind the wide difference in opinion, let us explore the different proposals of reform suggested.
One approach is that taken by those who adhere to Wicks', favouring the doctrine as a test for intention of the parties. Nevertheless they do accept that “a small list of rules” need to be amended, including the abolition of the so-called rule in Foakes v Beer ; the recognition an legally remarkable promise where the promisee has altered his position to his detriment in reliance of a promise, thus removing what he regarded as a radical defect with the doctrine of consideration; and relax the rule of no jus quaesitum tertio so that a party to contract would be able to raise a claim relying on it.
Another approach is that taken by Llewellyn, similarly stated that consideration was fitted for most normal situations, but it gave trouble in atleast four type scenarios in the areas of business promises such as “firm” offers; promises in return for acts revoked before completion of the acts; the “hugely important” accrual or modification of business arrangements after the completion of the original contract; and family transactions, as well as promissory estopple situations, and the difficulty with the third party beneficiary.
Ballantine was more radically conservative. So conservative that he argued to look back into the history of the doctrine to abolish the doctrine, suggesting that the old test of bargain is universally applicable. He did not claim that the old test was sufficient to govern all promissory obligations, but states that there are three distinct grounds for giving effect to a promise in the eyes of the law. The first being the reciprocity of bargain or exchange, the second is the situation where there had been action in reliance on a gratuitious promise and finally where there was an pre-existing obligation whether ir be legal, equitable or moral, but only if it was based on a value received and co-extensive with the promise.
Hodsworth went one-up from Ballatine's radical approach. Backhandedly arguing that the doctrine of consideration should not be scrapped, he insisted that the true remedy was to diminish it to an echelon of a subordinate place in common law, eradicating the divergence between simple and specialty contracts. Therefore in his view, as long the parties intended to affect their legal rapport by a promise, it should be legally enforceable and either consideration was present or the agreement was in deed by all the parties thereto.
The question to bear in mind is whether today's society demands certainty or flexibility? This is the basic problem out of which such divergent academic positions arise from. Some academics adhere to the certainty aspect of consideration whilst others scrutinise the inflexibility of the rules governing the doctrine. Surely enough there are more writers adhering to the balancing of both these needs and trying to achieve an optimistic equilibrium where the alteration of the rules gives just the right amount of certainty and flexibility necessary for modern contractual relations. Nonetheless the struggle is caused by the fact that certainty and flexibility are too antithetic ideas. This author is not as extreme as to suggest a proposition as suggested neither by Hodsworth nor Ballantine. Looking at the French jurisdiction and the causa as discussed (below/above), it is arguable that English law already requires a intention to create legally binding relations as one of the certainties therefore consideration is an extra limb which would enable filtration of legally unremarkable promises, yet the immense litigation that reach the courts where contracts fail on consideration or on a disputed point as to promissory estopple is evidence to suggest that the current position of either English law is failing to cater the needs of the commercial realities of today. There is an urgent need to reform the current position in English law. Whether is it the reform of the doctrine by the absolute abolition of consideration to align ourselves with other European Civil law jurisdictions like France or the unification of estopple as done by the common law jurisdiction of Australia. As legal academics we are bred to hate gaps in law where precedent and principle bend logic and reason. This is the reason why reform seems very appealing, It is my view that the reform need not be all that radical if the law can fill the affore-discussed gap of justice without resorting to an extreme measure. Therefore we shall explore the attempt at reform of the doctrine of consideration by the State of New York prior to any such attempt by any other common law jurisdiction.
The New York Experiment Between 1934-41
In the early twentieth century, the prevailing climate of opinion is mirrored by the English Law Revision Committee sixth interim report and the New York State law revision commission's independent investigations in to the fundamental basis of contract law in order to test the applicability of the common laws notions to the modern day. The New York State Legislature adopted the reform proposals of the reform of the doctrine of consideration. The English, on the other hand, ignored most of the reform proposals. Goodhart suggests that the English conservatism can be explained by the fact that England was a stable civilisation with an indigenous set of mature rules. In contrast to this, the social conditions in United States of America were rapidly changing. This change promoted an attitude where society was more inclined to pioneer changes in law. This change gave rise to a more active judiciary and correspondingly the legislature was also more willing to do experiments to a common law which was of foreign origin to the states.
One of these experiments that are of significance to the discussion here is the New York State Legislature enactment of legislature to accept the reform proposals to the doctrine of consideration. The alteration allowed agreements extending the time for payment of ay debt or obligation, and agreements reducing, for a fixed or determinate period of time, the rate of interest on any debt or obligation secured wholly or in part by real property, were rendered valid if made without consideration, provided a written memorandum of the agreement was made and signed by both parties. Professor H. Whiteside of Cornell University in his study was highly critical of this proposition especially when in application in the situation exemplified in Foakes v Beer arguing along the lines that a promise or performance of a pre-existing duty could give rise to duress. Nevertheless, he was in agreement with the application of the doctrine with respect to situations involving an offer and argues that application does not necessary give rise to the enforcement of a gratuitous promise, since offeror would be sure that the consideration was specified in his offer. Likewise he was generally in agreement with the consequence of the new legislation that there need not be good consideration for the discharge of debts, contracts and other rights in action. In conclusion he argued that the common law doctrine of consideration was impractical for universal application as the test of the enforceability of promises. He thought that such a test must be left for the forum of conscience. The only justification he saw in the doctrine of consideration was that it provided some sort of threshold for objective reflection against hurried, impulsive contracts. Yet, he sought that this protection, security and certainty could be insured by evidentiary and formal requirement. Nevertheless, he fails to point out the exact formal requirements he suggests that could cure the gap of justice whilst giving the same, if not more, security and certainty offered by consideration. Yet, the commission did not accept the agreement in whole and did not agree to the absolute abolition of the doctrine. The commission suggested for; (i) the change the requirement of the a sealed instrument to the mere existence of an agreement in writing when changing or discharging a contractual obligation, (ii) the alteration of the laws regarding creditors and debtors to allow a release of a debt, claim, or obligation by a written agreement without good consideration and (iii) the amendment of the Real Property Law concerning the modification and discharge of an obligation, by substituting a clause to the effect that an agreement to modify or discharge in whole or in part any contract, obligation, lease, or mortgage should be valid in the absence of consideration, provided the amendment was in signed writing.
In 1936 once these proposals were enacted as law, the litigation that followed showed a difficulty in distinguishing cases where there was a amendment of a contract and the enforcement of a gratuitous promises. Moreover the practical reality reflected by the laws where antithetic to the purpose of the legislation due to the conservative approach by the courts to the radically new laws.
In 1940 the commission embarked on a further examination of the enforcement of promises of consideration and significance of the seal in law. This was mostly because the law was uncertain and chaotic. Some states wholly abolished the seal whilst others still insisted on its significance. Therefore those states that held on to belief that the seal was still important, had enacted that any written agreement that wasn't support by the seal still required good consideration in order to be legally enforceable.Whilst on the other hand in other states all that was necessary for an enforceable promise was a written agreement. Yet, due to the unsuccessful attempt of a Uniform Written Obligations Act in 1925, drafted by Williston and approved by the National Commissioners on Uniform state laws and the American Bar Association, such an embarkation was concluded to be impractical drawing from former experience. The commission decided to leave the legal gap between the states where the seal was and wasn't recognised. Nevertheless, they accepted the avid necessity of some form of enforcement of gratuitous promises in a mature legal system. The Uniform Written Obligation Act 1925 was not wholly satisfactory because it only applied to written promises, and failed to deal with injustice arising from oral and gratuitous promises. Thus commission found against the; (i) move back to the seal: due to the technical difficulties that arose due to this instrument, (ii) creation of a device for general enforcement of gratuitous promises and upheld the need for consideration in general promises with statutes creating express exceptions to the general rule and (iii) complete reconsideration of the doctrine of consideration whilst accepting the abrogation of this requirement in certain cases with further expections as and when the situation arose. This was the commission method of preventing the danger of a sudden and radical change in law whilst removing recognisable defects in law.
The detailed removals of defects were:-
(a) that promises based on a past consideration were to be enforceable;
(b) that offers expressly stated to be irrevocable for a specified time were to have effect according to their tenor.
(c) that assignments of a chose in action should be enforceable even though made without consideration; and
(d) that the legal effect of the seal exceot as a means of authentication instruments, should be abolished.
These recommendations were incorporated into the law by legislation passed by the New York Legislature in 1941. Hays, the reporter for the New York State Law Reform, though broadly complacent to reform seemed to be unsatisfied with regard to certain facets of the reform. He found a general reluctance from the commission to impose a single solution to the problem which was descrided with a general tone of revulsion. Even stronger was his critique when it came to the requirement of a signed written agreement. He wrote “The magic of the seal had been done away with, but it must not be replaced by the magic of the simple writing”. Lloyd found critique on the point that gifts and gratuitous promises was, even after the reform, left unenforceable. Blackmar applauded the reform, arguing that any change to a basic doctrine of law would leave gaps of uncertainty and was an inevitable consequence. Optimistic that the adjustments would lead to even further changes that would helping the state grow closer to a more certain set of rules that govern the enforceability of promises. It easy to get drowned in arguments against a bold move, yet Blackmar's arguments seems very easy to agree with. Nevertheless, Hays' point on the replacement of one form of magic by another form of magic is a danger that should be accepted and arguably this does not serve the purpose of the reform. if the change was fueled due to difficulties of the technicalities of a seal, the same could apply to signed written agreements. Nevertheless it should be noted that if such a law was enacted uniformly, it would fill the gap of law between the states where the seal was and wasn't recognised.
The New York experiment between 1934 and 1941 was vindicated within a few short years with the promulgation in 1952 of the Uniform Commercial Code and its subsequent adoption by all states but Louisiana in the United States of America. What was once regarded as blasphemy had now become main stream in the United States' contract law.
The importance of the experiment in New York is that it is shows the experience of the difficulties that arise when trying to change a doctrine that is so inherently ingrained as a basic fundamental principle around which the contract law as grown around. It is natural to expect inertia and backlashes at changes of fundamental principles of contract that will shake all aspects of the contracts to the core. It clear that such a change should not come in the form of a single decision from the Supreme Court. If English law was to embark on such a change we should go back and explore the Sixth Interim Report of the English Law Revision Committee (1937). This document must be subject to thorough scrutiny and should be amended to bring in line with realities of 21st century. Whilst learning important lessons from the troubles that New York faced during the early experimental stages, the English law needs to cautiously reform the doctrine of consideration. Rather than blindly following the example of United States' position adopted in 1952 and its subsequent amendments to bring the principles into the 21st century, the English law needs to be reformed to cater for English needs. Through greater European integration the European Union seems to appear more like a Super state. With the Treaty of Lisbon entering into force on 1st of December 2009 and the sovereignty of England and Wales amply challenged, the need for reform of the already inadequate doctrine of consideration is urgent if retention of the doctrine is expected. With the impending threat of PECL , the legislature needs to urgently do a thorough study of the doctrine, its deficiencies and alter the principle if common law is to preserve the doctrine of consideration. With the arguments about the failure of consideration in an integrated European market growing in weighting by civil lawyers, English law needs to reform consideration to defend it. If not, we might have to succumb to the European demands and end up with a doctrine that is more like the French Causa, as stipulated by PECL art2.101.
(iii) Reform proposals in the Sixth Interim Report of the English Law Revision Committee (1937)
The sixth interim report of the English Law revision Committee (1937) was issued after been selected in 1934 inter alia to deem how far the doctrine of consideration needed amendment, particularly with respect to the rule in Foakes v Beer, the rule that consideration must move from the promisee, including the common law attitude to the rights of third parties and report on the necessity for consideration at all as a prerequisite for an enforceable promise.
The overall tone of the report was heavily influenced by the major reform taking place at time in USA. The report tended to evoke a mix of emotions. An avid hostility to the doctrine can easily be seen in the bulk of the text. The report seemed to be themed around the argument that “today in very many cases the doctrine of consideration is a mere technicality, which is irreconcilable either with the business expediency or common sense, and that it frequently affords a man a loophole for escape from a promise which he has deliberately given with intent to create a binding obligation and in reliance on which the promise may have acted”. Much of the read seems to suggest that the committee where in favour of the abolition of the doctrine. Yet, when the committee came around to suggesting reforms, the committee felt it was imprudent to abolish the doctrine. The report suggested a reformed retention. The reforms were only confined to the problematic areas of consideration. The committee suggested reforms to remove the defects in the doctrine in these particular problematic areas. The Major reform suggested by the committee was that a contract should be enforceable if, either the promise had been made in writing by promisor/his agent, although it need not be signed by him, or if it were backed up by consideration past/present. Yet, this is just a means of replacing consideration with form. Nevertheless this would amount to heresy for Lord Mansfield, and would be a serious infringement of the man's liberty of the freedom to contract.
Hamson and Williston criticize the committee's cautious approach to the reform. They found the committee's unwillingness to recommend the enactment into law of the admirable proposition that it represented as simple and obvious distasteful. In a climate of reform sparked off by the USA reforms, it is understandable that reform or better yet abolition filled in a great part of the academic literature. Yet with the benefit of hindsight we can safely disagree with these arguments. Especially since consideration has seen us through the century and developed accordingly to fit the needs of the modern community. Most other major reforms suggested by the committee relevant to this discussion, though rejected by the parliament initially, has been developed and incorporated, by the judiciary into modern common law. Though not out-rightly and expressly done, it must've been a source of inspiration to look for when ‘inventing consideration'.
The case today is very much the same. The report wrongfully propels one towards favouring the absolute abolition of the doctrine through the bulk of it's text. Yet, one should draw inspiration from the approach taken by the committee to the problems of consideration. This author is of the view that the only intrinsic problem that could negate elementary justice due to the doctrine is “the Gap”. The Sixth Interim report does provide an infallible solution to this problem, yet it shows us a good method of approaching a problem related to consideration and reform it in order to retain it.