ilr.ccsenet.org International Law Research Vol. 7, No. 1; 2018 Abolishing the Doctrine of Consideration - The Story of the Arra- Part 2 Graham McBain1,2 1 Peterhouse, Cambridge, UK 2 Harvard Law School, USA Correspondence: Graham McBain, 21 Millmead Terrace, Guildford, Surrey GU2 4AT, UK. E-mail: [email protected] Received: December 26, 2017 Accepted: January 16, 2018 Online Published: February 10, 2018 doi:10.5539/ilr.v7n1p95 URL: https://doi.org/10.5539/ilr.v7n1p95 20. PLOWDEN (1565) Sharington v Strotton (1565)1 concerned the conveyance of land by use by the owner to his brother and heirs, reserving a life interest (a liferent).The case was reported by Plowden and much use of the word 'consideration' was made of - albeit, it should be noted that Plowden's reports were published in Law French in 1571 and translated in 1761. The case arose on a bill of trespass against Strotton and others for taking timber without authority from land subject to a use (a trust) contained in a deed. The crucial issue was whether the use was valid. Counsel for the P's (Fleetwood and Wray) argued that the use was invalid since there was no consideration. Plowden (appearing for the D's with Bromley - he described himself as an 'apprentice of the Middle Temple') argued that the use was valid since a deed 'imported consideration' 2 - a proposition of law accepted by later courts and one which still prevails today (the actual case held that natural love and affection was sufficient consideration but this was soon reversed).3 So, what was consideration ? And, why was natural love and affection treated as, in effect, having a money value (being a good price) ? (a) Use of the Word 'Consideration' The word 'consideration' was used extensively in the case report. More than 100 times. Similar to St German, it was used - at various times - as a synonym for: a 'reason' or 'basis';4 1 Sharington v Strotton (1565) 1 Plow 298 (75 ER 454). See also Baker & Milsom, n 118, pp 488-92 and Simpson Equitable, n 100, pp 33-5. 2 Ibid, p 309 'every deed imports in itself a consideration viz the will of him that made it, and therefore where the agreement is by deed, it shall never be called a nudum pactum.' G de C Pamiter, Edmund Plowden (1987) noted, p 83 'That, however, was not Plowden's main argument which he developed from Aristotle's treatment of the natural law in his Politics. The conclusion to which his argument led was that natural love and affection provided sufficient consideration to raise a use. That argument was accepted and judgment was given for the [D's].' Parmiter also noted that - in Callard v Callard (1597), after Plowden's death - the Exchequer Chamber reversed the judgment of the King's Bench and held that - to raise a use - a contract in consideration of natural love and affection had to be under seal. See Callard v Callard (1593) Cro Eliz 344 (78 ER 593). Also, Poph 47 (79 ER 164) and in Exchequer Chamber, 2 And 64 (123 ER 547). See also Baker Doctrine, n 2, p 1185. 3 Bacon, n 46, p 165 'a deed ever in law imports a consideration, because of the deliberation and ceremony in the confection of it: and therefore in 8 Reginae [i.e. Sharington's Case] it is solemnly argued, that a deed should raise an use without any consideration.' Also, 'I would have one case shewed by men learned in the law where there is a deed; and yet there needs a consideration'. Ibid, p 165. See also Jenks, Pt 1, n 91, pp 145, 155-8. 4 e.g. Sharington v Strotton (1565) 1 Plowd 298 (75 ER 454), at p 301 'The other way is, to keep the land in his hands without parting with it, and yet do such a thing as shall make the possession to be to the use of another, and that cannot be unless the thing imports in itself a good and sufficient consideration to make the possession to be to the use of another, which shall be upon a contract, or upon a covenant or a grant on consideration.' (italics supplied). The first instance is a 'reason'; the second is a 'recompense'. Ibid, p 301 'we ought to weigh the considerations here.' Ibid, p 302 'And none of the considerations contain a recompense here...' Ibid, p 302 'if uses might be so easily raised upon such considerations as these..'. Ibid ' p 303 'the considerations are in number four'. Ibid, p 304 'he followed nature for his guide, which is a sufficient consideration in our law.' Ibid, p 304 'the consideration of [X] here expressed for the provision... of his heirs males is a sufficient consideration to raise a use in the land.' Ibid, p 309 'Nudum pactum est ubi nulla subest causa [reason] praeter conventionem; sed ubi subest causa sit obligatio et parit actionem' (A bare contract is one where there is no cause [reason] beyond the agreement itself, but where there is such a [reason] then there is a legal obligation and a legal action is available).' Reference may also be made to a YB case 20 Hen VII 11 (i.e. 20 Hen 7 pl 20 fo 10b-11a, Seipp no 1504.020), see Salmond Essays, n 89, p 193 where it was said of a grant 'It was made on good consideration [reason], for the elder brother is bound by the law of nature to aid and comfort his younger brother.' 95 ilr.ccsenet.org International Law Research Vol. 7, No. 1; 2018 a 'purpose' or 'motive';5 a 'price', 'payment', recompense' or 'reward''; 6 in 'exchange for' or in 'return for';7 on 'reflection'. These different senses were (often) used even in the same sentence. Thus, for example, Fleetwood and Wray (for the P's) argued that: if a man is seised of land in fee, and bargains and sells the land to another in consideration of a certain sum [i.e. an agreed sum] paid to him, or agreed to be paid at a certain day, here is a contract 8...because he has done an act upon consideration, that is, he has bargained the land for [a fixed sum of] money....9 In the first instance, the words 'in consideration of ' are synonymous with in 'exchange for' or in 'return for'. Thus, a valid sale was made (it was alleged) if land was sold for an agreed price (a certain sum). In the second instance, 'consideration' was used more as a synonym for 'price' or 'payment'. More specifically in this case, for 'money' (a certain sum of money). However, in the second, instance, 'consideration' might also have referred to 'reflection'. That is, the parties had bargained (that is, haggled or negotiated) over the matter and had come to a mutual, fixed, intention - evidenced by their agreement on the sale of the land in question and the price for the same. Indeed, any reference to a bargain or a contract indicated that the parties were in a business transaction and that this was not a case where a gift was being asserted. In conclusion, the fact that the word 'consideration' was used in many senses in this case indicates (strongly) that there was no doctrine (pre-requisite) - as such - at this time. (b) 'Consideration' as Synonym for 'Price' & 'Payment' Plowden used the word 'consideration' as a synonym for the word 'payment' or 'price'. Indeed, he stated as such: the law has provided that a contract by words shall not bind without consideration...As if I promise to give you £20 to make your sale de novo...10 Fleetwood and Wray (as reported) employed similar usage when they referred to an agreement subject to a condition: the case of a covenant upon consideration, as if I...promise and agree with another that if he will marry my daughter, he shall have my land from henceforth, and he does so, there he shall have a use in my land, and I shall be seized to his use, because a thing is done whereby I have benefit, viz. the other has married my daughter, whose advancement in the world is a satisfaction and comfort to me, and therefore is a good consideration to make him have a use in my land.11 (italics supplied) 5 Ibid, p 302 'the like consideration they had in making the Act of Inrollments..'. [i.e. Statute of Enrolments 1536]. 6 Ibid, ''the cestui que use may as well give or grant his use without consideration'. 7 Ibid, 'if a man grants to JS that in consideration of their long acquaintance...'. Ibid, p 305 the husband takes upon him to find the wife with everything that is necessary, and in consideration thereof the father shall bear the charge of the rent.' Ibid, p 307 'if A....covenants with B that in consideration that B will marry his daughter...'. 8 This was inaccurate since there was no delivery. Cf. the example of Robert Kelway (Keilwey, Sgt) cited by Anthony Gell c.1562, see Baker Doctrine, n 2, p 1190 'Note that Kelway said that if I give another twenty shillings, or a penny, in consideration that he to whom the gift is made should make an assurance to me of his manor of Dale for the sum of £20 to be paid later, and if he who takes the penny does not make assurance, the other may have an action on the case and recover damages to the value of the land, because it was a contract and there was quid pro quo.' Keilwey also thought that an agreed exchange of land for £20 without the 1d was invalid, for there was no exchange of 1d.