Contract, Consideration and the Critical Path

Publication Date01 Jul 1990
AuthorJohn Adams,Roger Brownsword
DOIhttp://doi.org/10.1111/j.1468-2230.1990.tb02835.x
The
Modern Law Review
[Vol.
53
against the United Kingdom government, as in the case which led eventually to the banning
of corporal punishment in state schools,
Campbell and Cosans
v
UK.86
The Convention,
like the UN Convention on the Rights of the Child (1989) which is awaiting ratification
and the Declaration of the Rights of the Child (1959), at least puts the emphasis in arguably
the right place
-
on the rights of children. After all, it is they who are the real losers
when education is disrupted or denied. Another possibility might be a claim
of
indirect
discrimination against Bangladeshi children contrary to the Race Relations Act 1976,
although it would be necessary to show,
inter alia,
that in an area where there is a high
proportion of Bangladeshi families, the lack of school places was having a disproportionate
effect on such children as compared with local children in general, and, perhaps, that
the failure to provide school places arose from a ‘deliberate’ omission.s7
In
conclusion, it seems strange that, despite the comprehensive and far-reaching reforms
of the past decade, English law stills8 offers no effective remedy where education is
denied. Moreover, the duty in section
8
of the 1944 Act to provide ‘sufficient schools’
falls far short of offering a legal right to education to the children of this country
-
rendering
of even more dubious value the advice that it should be ‘learned by heart by every
citizen.
’s9
Contract, Consideration and
the
Critical Path
John
Adams*
and
Roger Brownsword**
In
Williams
v
Roffey Bros and Nicholls (Contractors) Ltd‘
-
which appears, in the
words of Purchas
LJ,
to be ‘a classic
Stilk
v
Myrick
case’*
-
the Court of Appeal has
held that a promise by A to carry out his existing contractual obligations to B may count
as good consideration in relation to a promise by B to pay A an additional sum for the
perfomance of those obligations.
The significance of this decision is fourfold. First, it casts doubt not only on the principle
in
Stilk
v
Myrick3
(as it has been understood in modem times) but also on the converse,
equally well-established, principle in
Pinnel’s
case.4 Second, it confirms one of the
leading themes of the death-of-contract school
of
thinking: namely, that
so
long as the
promisee confers some reciprocal requested benefit on the promisor, it is not essential
86
(1982)
4
EHRR
293.
87
See,
in
particular, the
diczum
of Lord
Goff
in a sex discrimination case concerned with the provision
of fewer places at single sex schools for girls than for
boys:
‘it
is
not necessary
to
show that the council
is in breach of its duties under
s
8 of
the
1944 Act. All that is necessary
.
. .
is that the council, in carrying
out its functions under that section, did an act
(or
deliberately omitted
to
do an act) where such act
or
omission constituted sex discrimination’:
Equal Opponunities Commission
v
Birmingham City Council
[I9891
1
All ER 769, at 776.
See,
for example, the comments in 1981
by
Colin Wringe in
Children’s Rights.
A
philosophical
study
(Routledge and Kegan Paul) Chapter 16.
88
89 H.C. Dent,
op cir.
*Professor of Commercial
Law,
University of Kent.
**Reader in Law, University
of
Sheffield.
1
[I9901
1
All ER 512.
2
ibid,
at p. 527.
3 (1809)
2
Camp. 317.
4
536
(1602) 5
Co.
Rep.
117a.

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