Summing up, perhaps it is reasonable to say that the present position is
that:
- Rights are probably extinguished in the situation of a single complete act
(such as the payments for the war years in High Trees), where the
promisee is unable to return to his original position. - However, with an ongoing agreement (as in the post-1945 payments in
High Trees) the original position can be restored with notice. - It is probably not necessary for a promisee to have acted to his detriment,
provided that he has done something which he would not otherwise have
done in reliance on the promise.
The current state of the doctrine
The traditional requirement of consideration is still alive, as can be seen by
some recent cases. Some doubt was placed over it by the rise of promissory
estoppel – interesting itself, since it is based on a series of obiter dicta,
which, of course are not technically binding – and a further blow was dealt
by the case of Williams v Roffey. This case, however, does not so much
challenge the doctrine’s existence, just the way in which it is measured or
found. It is certainly true that in previous case law there is some
inconsistency – compare Ward v Byham with White v Bluett. Are they not
both too vague to provide consideration if the court is really looking for
something recognisable? Yet one contract was valid, the other not.
There are other anomalies, and the doctrine has had a fair amount of
criticism over the years. As far back as Couldery v Bartrum (1881) Jessel
MR said:
According to English Common Law a creditor may accept anything
in satisfaction of his debt except a less amount of money. He might
take a horse, or a canary or a tom-tit if he chose, and that was accord
and satisfaction; but by a most extraordinary peculiarity of the
English Common Law, he could not take 19s 6d in the pound; that
was nudum pactum.Professor Atiyah would agree, suggesting that if we have offer and
acceptance, and providing legal intent is present, there is no need for strict
consideration. However, others, like Professor Hamson, would say, just as
forcefully, that the doctrine is, along with offer and acceptance, part of an
‘indivisible trinity’ of contract. Perhaps the courts are now acknowledging
that consideration is needed, if by that we mean a two-sided bargain, but
perhaps adding on to that argument the kind of commercial realism found
in Williams v Roffey. We await further developments.
Consideration 63