contract-law england-and-wales
Why would binding someone abolish an exception to the rule that bargains bind?
<p>I don't fathom the emboldening. </p>

<ol>
<li><p>Who is <strong>he</strong> and <strong>him</strong>? The creditor or debtor? </p></li>
<li><p>Pls see title. </p></li>
</ol>

<p>Paul Davies. <a href="https://www.amazon.co.uk/Smiths-Law-Contract-Paul-Davies/dp/0198807813/ref=dp_ob_title_bk" rel="nofollow noreferrer"><em>JC Smith's The Law of Contract</em> (2018 2 ed)</a>.  p 89. </p>

<blockquote>
  <p>&nbsp; &nbsp; &nbsp; <a href="https://en.wikipedia.org/wiki/Rock_Advertising_Ltd_v_MWB_Business_Exchange_Centres_Ltd" rel="nofollow noreferrer"><em>MWB</em></a> has now been [<s>appealed to</s>] [decided by] the Supreme Court. Perhaps the most unsatisfactory
  outcome would be for the Supreme Court to seek to reconcile the two lines of case law. It
  is suggested that the Supreme Court has a clear choice to make: it can either depart from
  <em>Foakes v Beer</em> and endorse the ‘practical benefit’ approach in <em>Williams v Roffey Bros</em>, or it can
  uphold the principle in <em>Foakes v Beer</em> and overrule <em>Williams v Roffey Bros</em>. Overruling <em>Foakes
  v Beer</em> was recommended by the Law Revision Committee in 1937 but was not acted on by
  Parliament. Indeed, departing from <em>Foakes v Beer</em> might be thought to undermine the doctrine
  of consideration. But this is not necessarily so. It may be that a distinction could evolve
  where consideration is required for the formation of contracts, but not for their variation.68
  In any event, the essence of the doctrine of consideration would remain intact. A person
  who agrees to pay an increased price in order to induce another to fulfil his contractual duty,
  or to take a lesser sum in full satisfaction in order to induce his debtor to pay something, is
  making a bargain. He asks for something in return for his promise to pay more—or not to
  sue for the balance, as the case may be—and gets what he asks for. <strong>It might even be thought
  that to hold him bound, far from impairing the basic rule that bargains are binding, would
  be to abolish an exception to that rule.</strong> Lord Blackburn recognised this in <em>Foakes v Beer</em> but
  was dissuaded by his brethren from dissenting on that ground. However, the actual result in
  Foakes v Beer may be unaffected because there was probably no bargain and no intention to
  release any existing rights. And even in situations where there is a bargain, that would not
  always be enforceable, since the outcome would depend on whether the party surrendering
  his contractual rights did so under economic duress.69</p>
</blockquote>

<p>"He" in this case refers to the creditor.</p>

<p>Let's see if I remember my contract law. In <em>Foakes v Beer</em>, the debtor (Dr Foakes) was in financial difficulty, so offered to pay the creditor some of the full debt right now, and the rest of it later on, and also asked not to be charged interest for paying later.</p>

<p>The creditor (Mrs Beer  agreed to this arrangement. However, later she changes her mind, and asks for interest too. The debtor says no, and the creditor sues for the interest.</p>

<p>The court decided that even though the creditor initially agreed to the new arrangement (therefore making a bargain, which is supposed to bind him), he wasn't bound by that agreement, because to change a contract, you require consideration, and the court held that agreeing to a lesser amount is not consideration (since there is no benefit to getting paid less, there is no consideration). Therefore this is an exception to the general rule that he should be bound by his bargain.</p>

<p>Subsequent courts have thought about changing this rule, since it makes sense that agreeing to get a lesser amount RIGHT NOW in exchange for not suing for the original amount seems like valid consideration, but they decided not to abolish this exception.</p>

<blockquote>
  <p>Who is he and him? The creditor or debtor?</p>
</blockquote>

<p>It means the creditor or, accordingly, the party who seeks to expand his entitlement(s) or to secure at least some part thereof.</p>

<p>Notice that a previous sentence in that excerpt has as head of the subject a "<em>person</em>", the one who seeks "<em>to induce another to fulfill his contractual duty</em>" or "<em>to induce his debtor to pay something</em>". The predicate of that sentence consists of "<em>is making a bargain</em>".</p>

<blockquote>
  <p>Why would binding someone abolish an exception to the rule that bargains bind?</p>
</blockquote>

<p>It seems to me that the author's expression is a tautology. Adding the following brackets makes the tautology more redundant but also more evident:</p>

<blockquote>
  <p>to hold him bound [as to the bargain], far from impairing the basic rule that bargains are binding, would be to abolish an exception to the rule [that bargains are binding].</p>
</blockquote>

<p>The referred case of <em>MWB</em> conveys that bargains satisfy the element of <em>consideration</em>, this element being a prerequisite for the formation — or variation — of a contract. It is just not clear why the author had to interject the notion of "exception" (exception based on what?) and the possibility of "abolishing" it.</p>

<h2>“He” is the person who provides consideration or the variation, as opposed to the one who doesn’t.</h2>

<p>The doctrine of consideration at stake is that a variation to a contract requires consideration from both parties. (Unless the contract allows for its own variation. Or the variation is executed as a deed. Or issues of estoppel arise. Or it’s under New Zealand law. Or ... look, it’s complicated, OK?)</p>

<p>It has long been a rule that a pre-existing legal obligation, such as one under a contract, is not good consideration. So variations where only one side provides consideration, like accepting a lower amount (consideration by the contractor/creditor) has no matching consideration from the principal/debtor or paying a higher amount (consideration by the principal/debtor) in order to finish by a previously agreed date has no consideration from the contractor/creditor, are not enforceable. <em>MWB</em> upheld that consideration is required - subject to a myriad of exceptions (see above).</p>

<p>That said, token consideration is valid consideration and courts can find it in the most unlikely places. Agreeing to a payment plan might be supported by the benefit of avoiding debt collection costs, for example.</p>
