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hoohoo

TDA wrote: »

Regarding your suggestion that HHJ moloney's reasoning that a promise not to perform a specific act is good consideration is going too far, I would suggest that the man is perhaps somewhat better versed in the law of contract than you are. That a promise to do (or not do) something is good consideration is trite law.

But can the 'something' just be a promise not to break the contract? Are the trite law 'somethings' actual somethings on the lines of 'if you pay me £10 sponsorship I will run a half marathon'.

if consideration is 'not breaking the contract', then by definition every contract can be argued to contain that consideration, thus removing the need to ever have an actual consideration.

Lastly, are those 'somethings' which are good consideration, 'somethings' which should be expressed in plain language in the contract, plainly evident to the man on the street (or omnibus) party to the contract, and not only obtainable through a convoluted examination by a senior judge keen to lessen the case load on his judges.

Thus, if the parking actually said:

You can park here for 2 hours for free, and in return you must then leave.

then this might be more understandable and valid than just

You can park here for 2 hours for free.

salmosalaris

TDA wrote: »

It is different and that is precisely one reason why penalty clauses in your hotel scenarios would quite possibly fail.

How and why ?

salmosalaris

TDA wrote: »

I would suggest that the man is perhaps somewhat better versed in the law of contract than you are.

I don't think I gave the impression of anything other than that by my use of language , however it does not preclude my right to disagree.
Plus a " my dad's bigger than your dad" approach is not great for intelligent discussion

TDA

jkdd77 wrote:

I refer to the arguments put forward by Andy Foster in the linked thread as to why HHJ Moloney erred on the matter of consideration:
http://forums.pepipoo.com/index.php?...c=88568&st=140
http://forums.pepipoo.com/index.php?...c=88568&st=160

The problem with that argument is that there is no existing obligation to 'leave after 2 hours'. Ignoring that the general rule that an existing obligation cannot be good consideration pertains to obligations under a pre-existing contract (Stilk v Myrick) or a public duty (Harris v Sheffield United), neither of which apply to our facts, it seems fairly obvious that the obligation to leave after 2 hours is not an existing obligation at all but an obligation specifically created by the contract.

hoohoo wrote: »

But can the 'something' just be a promise not to break the contract? Are the trite law 'somethings' actual somethings on the lines of 'if you pay me £10 sponsorship I will run a half marathon'.

if consideration is 'not breaking the contract', then by definition every contract can be argued to contain that consideration, thus removing the need to ever have an actual consideration.

Not sure that I follow the logic? The promise is not to 'not break the contract', it is to leave after 2 hours, the same as how, for your example, the promise is not to 'not break the contract' it is to run a half marathon?

No one is promising not to break the contract, they are promising to do a certain thing. If they then don't do that, they have breached the contract and the other party have a cause of action for that breach in the courts.

hoohoo wrote:

Lastly, are those 'somethings' which are good consideration, 'somethings' which should be expressed in plain language in the contract, plainly evident to the man on the street (or omnibus) party to the contract, and not only obtainable through a convoluted examination by a senior judge keen to lessen the case load on his judges.

We are moving away from consideration here, into clarity and certainty of offer, though I would personally express my opinion that "Parking limited to two hours" is about as plain language as it gets.

salmosalaris wrote:

How and why ?

Because in those situations damage is sufficient to deter breach (refer to 7.15 (b) of the Moloney judgment) so the policy of deterrence cannot be commercially justified.

salmosalaris wrote:

I don't think I gave the impression of anything other than that by my use of language , however it does not preclude my right to disagree.
Plus a " my dad's bigger than your dad" approach is not great for intelligent discussion

Right you are, apologies. I think that comment largely stemmed from frustration at the number of derogatory, rather than simply critical, comments regarding Moloney's capabilities as a judge that I have seen elsewhere on the forums. Whether or not you agree with his decision, the man is far more qualified than anyone here, so to suggest he doesn't have a clue what he is talking about is ludicrous. I accept that that is not what you yourself were doing.

salmosalaris

@ TDA
could you answer my post 141 please
Apologies accepted

salmosalaris

TDA wrote: »

Because in those situations damage is sufficient to deter breach (refer to 7.15 (b) of the Moloney judgment) so the policy of deterrence cannot be commercially justified.

How can one person decide what is a level of charge that is enough to deter breach? everyone is different, what facts is he working on ?
As I previously posted MSA's feel £11-00 is enough to deter motorists from staying an extra hour.
If I'd paid to park and going a few minutes past my limit cost a fiver I'd bloody well make sure I was back in time.
The argument is nonsense

hoohoo

TDA wrote: »

Not sure that I follow the logic? The promise is not to 'not break the contract', it is to leave after 2 hours, the same as how, for your example, the promise is not to 'not break the contract' it is to run a half marathon?

No one is promising not to break the contract, they are promising to do a certain thing. If they then don't do that, they have breached the contract and the other party have a cause of action for that breach in the courts.

I still struggle in my mind to understand why the promise to leave after 2 hours is not exactly equivalent to not breaking the contract.

Perhaps it would help if anyone knows any case law where a contract was found to be void because there was no consideration on one side. I will see if I can find any myself while pretending to watch Foyle's War.

salmosalaris

@ TDA
post 141
I'm still waiting

Fergie76

http://e-lawresources.co.uk/Consideration.php

salmosalaris

thanks but I'm still waiting for someone to tell me what consideration that is of value to PE has been given
IMHO zilch