Discuss with reference to the case of Jones v Padavatton 1969

The problem that arises, and the reason that consideration has become so controversial, is the seemingly arbitrary way in which judges may validate it to decide locus standi, adding as they go to the compendium of judicial inventiveness that is common law.  It is obviously difficult to distil any absolute rules of thumb from four hundred years of case law.  What then is consideration in the eyes of the law?

Currie v Misa established that consideration means something which is of some value in the eyes of the law and that it must move from the plaintiff.  Items as diverse as chocolate wrappers and peppercorns have been recognised as good consideration.  In the case of the Eurymedon  the Privy Council decided that a third party (stevedores) were able to use their services as consideration even though, under the classical model, consideration is ineffective if it moves from a third party. Apparently judges will generally find consideration when necessary, even to the extent of apparently changing the law.  In Williams v Roffey, the Court of Appeal broke new ground by establishing a distinction between legal and factual consideration.  Glidewell LJ, quoting Chitty on Contract, maintained that there was consideration if there were a new benefit to the promisee even without detriment to the promisor.  Here, as in Stilk v Myrick and its predecessor Harris v Watson, the judges are clearly aware of their role in determining precedent which could dangerously affect public policy.  In light of this, what is objectivity if not a subterfuge for judicial subjectivity?

In Jones v Padavatton, a mother promised her daughter $200 a month to give up her well-paid job in Washington, move to England and study for the Bar.  Several years on, the English CA refused to uphold the agreement despite the ostensible presence of consideration, because (quoting Atkin LJ in Balfour v Balfour) “each house is a domain into which the king’s writ does not seek to run, and to which his officers do not seek to be admitted.”  Since the Balfour decision, as Salmon LJ pointed out, in domestic context there is a presumption against intention: the onus was on the daughter to prove that it existed.  Fenton Atkinson LJ saw Padavatton’s defence as a retrospective invalidation of contract when she claimed, “a normal mother doesn’t sue her daughter in court… anybody with normal feelings would feel upset.” Unwittingly she implied, it seemed to him, that when agreeing to the original terms legal action was far from her thoughts.  Does this mean that she had no legal rights in contract?

Salmon LJ disagrees: “The fact that a ...contracting party is unlikely to extract their pound of flesh doesn’t mean that he has no right to it...” Referring to the objective test as an unfortunate misnomer, he agreed it was necessary.  Disputing the verdict in Shadwell, he allowed that it illustrated circumstances where the rule is proven by its exception.  Nevertheless he thought this agreement different to an ordinary social arrangement. “The daughter here was 34 years of age... employed at a salary of $500 a month...this employment carried a pension...she had a son of seven who was an American citizen…solid reasons for her staying where she was”.  In his opinion there was possibly intention although he refused the appeal on other grounds.  One thing is clear - judges seem reluctant to establish legal intention in a domestic setting.

 “The question remains: can there be a contract when there is consideration but no conclusive intention?” Is it time, in a move toward harmonisation with the rest of Europe, to get back to the “roots of contract” and requirements of form that are favoured by civil law?  Formal requirements are attended by considerable disadvantages.  Cumbersome and time-consuming, they are seen by some as “characteristic of primitive and less well-developed legal systems”.  Williams gave rise to a widespread perception of  “the death of consideration” when the centrality of the doctrine to contract was questioned.  Lord Goff raised such doubts again , and if the courts chose, these arguments could eventually abolish consideration.  Russell LJ suggested,  “Courts should be more ready to find the existence of consideration…to reflect the intention of the parties”.  It seems immaterial whether the test in question determines consideration or intention.  Without form no test can ever be objective, and it is ultimately the responsibility of those who advocate the abolition of consideration to formulate a set of alternative rules.    

NB

1    One wonders whether a parallel might not have been drawn between the letter Mr Agimudie, (a lawyer himself and the mother’s agent) had written at the time of initiation of terms, assuring her that maintenance would be provided for, and the letter drafted by Col Parker to Mr Clark which the courts accepted as evidence of intention to create legal terms but which even by their own admission was not legally watertight (Parker v Clark ….)

2     One obvious objection to the requirement of an intention to create legal relations points out that the reference to intent are at best fictitious … and at worst, are actually false…

Hugh Collins The Law of Contract 4th ed.

        Fictitious:  (adj.) not true or genuine, and intended to deceive.

        False:  (adj.) not conforming to facts or truth; done with or having the intention of deceiving somebody.

(Standard English Dictionary)

It would be lovely if the people writing law books would use English in a manner that did not pontificate or patronise and left the poetry to Shakespeare.  It might seem petty but if the language of law were more straightforward it would be more accessible and perhaps result in less convoluted rules!