A critical review on Foakes v Beer: Reform of common law at the expense of equity, Alexander Trukhtanov, Law. Quarterly .Review. 2008, 124 (Jul), 364-368

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A critical review on ‘Foakes v Beer: Reform of common law at the expense of equity, Alexander Trukhtanov, Law. Quarterly .Review. 2008, 124 (Jul), 364-368

Under English Law, it has always been required that every contract be supported by consideration.  Initially, contract, acceptance and certainty are the standard requirements which prescribe the skeletal structure of a contract’s formation.  The dominant theory of consideration has provided agreements with the elements of a bargain, thus distinguishing contracts from gifts; and consequently a promise made by one person to another is not legally enforceable.  In addition, the latter unless he has provided some promise or act in return.  Taken from Currie v Misa  the principle of consideration was defined as:

A valuable consideration, in the sense of the law, may consist either in some right, interest, profit, or benefit accruing to one party or some forbearance, detriment, loss or responsibility, given suffered or undertaken by the other.

However, in most recent times the doctrine has come under criticism (for example, Lord Edward Coke on Pinnel’s case pleaded that ‘…by no satisfaction can a lesser sum on part-payment can be approval to the plaintiff for a greater sum’  however Lord Blackburn criticised this judgement), taken from the article of ‘Foakes v Beer: Reform of common law at the expense of equity, Alexander Trukhtanov to which the author has outlined the critique of the common law and to see what has been the subject of the possible reform.  The aim of the article criticises the judgments in Foakes v Beer and whether the decision in Collier  could contemplate giving equitable relief as such common law defence.  This essay will examine opinion hostile to the doctrine of consideration and will consider its possible abolition.  Equally, this essay will consider the refinement of many of its traditional principles with a view to recommending its preservation as an essential element of contract.      

In summary, the author conducted a review on the influence on the decisions and judgements between the cases of foakes and collier.  The review aimed to provide evidence on the effect of the common law defence of part-payment and whether equity could reform this common law.  The review reveals that the House of Lords decision in Foakes v Beer elevated to the status of a common law rule by Sir Edward Coke in Pinnell’s Case (1602).  The author has made reference to this common statement which Foakes supported the view of part-payment of debt and could not amount to sufficient consideration.  The principle was already known from Pinnell’s case which the obiter dictum by Sir Edward Coke states ‘…that absent agreement under seal or fresh consideration acceptance by the creditor of part payment of a debt does not in law discharge the whole debt’  Thus whilst part-payment of debt is not sufficient consideration, such part-payment would be sufficient if some new element is included.  

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On the facts of Foakes v Beer it was given the basic rule that a payment of a smaller sum will not discharge the higher sum.  As a general rule, it would not be good consideration for a creditor to forgo the balance.  In paying part of the debt the promisee is doing no more than performing an existing contractual duty owed to the promisor.  In this case, the rule of Pinnell’s Case was nevertheless affirmed.  

 

It can be argued, that the principles from Foakes v Beer and Pinnel’s Case, part payment may be more acceptable ...

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