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TOPIC: TORT TITLE: The Extinctive Effect of Promissory Estoppel AUTHOR: David Capper Reader in Law, Queen's University Belfast; e-mail: D.Capper@qub.ac.uk. SUMMARY: Abstract It is said that promissory estoppel has merely a suspensory effect on a payment obligation. In the context of periodic payments this makes sense. The payer pays less or nothing at all for a period of time or while a set of circumstances exist and when this time or those circumstances end the obligation to pay in full is reinstated. In the context of liquidated debts promissory estoppel is said to give only time to pay because any 'forgiveness' of the debt would be incompatible with the decision of the House of Lords in Foakes v Beer. In late 2007 the Court of Appeal gave some support to the notion that a creditor's promise to accept part of a liquidated debt, followed by the debtor's actual payment of that amount, would of itself discharge the original debt. This article argues that this goes too far but supports the Court of Appeal to the extent that where all the elements of promissory estoppel are satisfied a liquidated debt is extinguished and the right to receive payment not merely suspended. Some suggestions are also made about the wider implications of this thesis for contractual renegotiations in general. Keywords: statutory demand, promissory estoppel, liquidated debt LEGISLATION REFERRED TO: Insolvency Act 1986 TEXT: I. Introduction Where a contracting party (A) promises the other contracting party (B) that A will not enforce in full or at all a contractual right which A has against B, then, in certain circumstances, A will not be permitted to enforce that contractual right. This is the doctrine of promissory estoppel and B can avail himself or herself of it even though B has provided no consideration for the relaxation of A's contractual rights. It is widely
A must make a clear and unequivocal promise to B that A will not exercise a certain contractual right against B. particularly judgment debts. under which the creditor voluntarily agrees to accept a lesser sum in satisfaction. then it is inequitable for the creditor afterwards to insist on the balance. that estoppel only has suspensory effect. the debtor's second argument. Arden LJ relied upon the following dictum of Lord Denning MR in D & C Builders Ltd v Rees: Where there has been a true accord. then the statutory demand had to be set aside. It has been argued n4 that any promise by a creditor to forego part of a debt can only provide the debtor with time to pay because otherwise Foakes v Beer would be flouted. 5. Collier v P & MJ Wright (Holdings) Ltd The creditor (Wright) served a statutory demand on the debtor (Collier) seeking the balance of a judgment debt obtained against three partners. II. n6 There can be no argument about this. It is the purpose of this article to argue that this is not the case where the debtor can establish the first four elements listed above. his allegations of fact had to be treated as true and the court's task was simply to decide if these allegations were capable of raising a genuine triable issue. not even in light of the decision of the Court of Appeal in Williams v Roffey Bros & Nicholls (Contractors) Ltd. is one where the promissory estoppel did extinguish the debt. The debtor relied upon an alleged compromise agreement which he had made with the creditor under which if he paid his one-third share of the debt the creditor would not pursue him for the remainder of this joint liability but would pursue the other partners instead. the estoppel only operates as a defence in B's favour and does not create any new rights upon which B can bring an action against A. where there is no room to dispute either the debtor's liability for the debt or its amount. The case of Collier v P & MJ Wright (Holdings) Ltd. Re Selectmove Ltd. n7 A subsequent decision of the Court of Appeal. This was despite the absence of much evidence of reliance on the part of the debtor making it inequitable for the creditor to go back on the compromise.recognized that this doctrine contains five elements: n1 1. n5 discussed in section II below. The debtor had paid his one-third share and argued that he had acted in reliance on the compromise agreement by not seeking any compromise with the other joint debtors whereby they would pay at least some of the joint debt themselves. although so far as this case suggests that mere payment of part of the debt satisfies the requirements of promissory estoppel it will be argued that it goes too far. n10 . 2. 3. and the debtor acts upon that accord by paying the lesser sum and the creditor accepts it. succeeded. If they did. n9 However. As the debtor was just trying to set aside the statutory demand. 4. B must demonstrate some act of reliance on this promise. n2 This article examines the fourth of these elements. They had now gone bankrupt and this along with the debtor paying his share was argued as making it inequitable for the creditor to go back on the alleged compromise. n8 has confirmed that the adjustment of the pre-existing duty rule effected by that case does not extend to part payment of a debt. it must be inequitable for A to go back on this promise. based on promissory estoppel. It is here where promissory estoppel is said to come into conflict with the rule in Foakes v Beer n3 which is clear authority for the proposition that the promise or payment of a sum less than the full amount of the debt is insufficient consideration for the creditor's promise to discharge the debt. generally speaking the estoppel only suspends the enforcement of A's rights so that A can reinstate them on giving B sufficient notice. The debtor's first argument that a triable issue had been established was grounded upon the alleged compromise agreement itself. This failed because it could not be reconciled with Foakes v Beer. It does so specifically in the context of liquidated debts.
090 19s. His solicitor drafted an agreement under which Dr Foakes made a down payment of £500 and agreed to pay instalments of £150 on . n20 In Foakes v Beer Dr Foakes owed Mrs Julia Beer a judgment debt of £2. '[t]he only realistic inference is that if Mr Collier had taken any action against them in 2001. there must still be a genuine accord. n18 Longmore LJ's approach was more firmly grounded on traditional promissory estoppel principles than was Arden LJ's. this dictum.As her Ladyship frankly acknowledged. in the High Trees n11 case'. effectively achieves the recommendation of the Law Revision Committee in 1937 that part payment or the promise of part payment of a lesser sum should be capable of discharging the original debt. To what extent does Foakes v Beer n19 actually hold that this is so? The insightful discussion of this question by Professor Treitel is gratefully acknowledged. D & C Builders Ltd v Rees certainly does not. Can it if the full criteria for promissory estoppel are satisfied? III. In no way does it represent the opinion of the court. It is also contrary to principle and policy. Arden LJ. he was doubtful whether the creditor had made a clear representation to the effect that if the debtor paid one-third of the joint debt the creditor would look to the other partners for the remainder. n14 Secondly. The compromise was made in 2001 and the debtor's argument was that his act of reliance was not then trying to come to some accommodation with the other joint debtors. on the other hand. The mere payment of part of a debt indisputably due to the creditor cannot possibly be an act of reliance by itself. it was doubtful whether the debtor had relied on the alleged compromise in any way. Neither can this proposition be treated as a majority view. one must start with the principal authority which holds that part payment of a debt (or the promise thereof) is not good consideration for the creditor's promise to discharge it. n13 he was markedly more cautious about the circumstances in which promissory estoppel might be raised in this context. which originates in the 'brilliant obiter dictum of Denning J. With respect. The builders accepted part payment of their debt because they were in dire financial straits and had no choice but to 'cave in' to the debtor's threats that if they did not accept what was offered they would get nothing. Longmore LJ was prepared to accept that promissory estoppel could result in the extinction of a debt obligation on part payment provided that the first three criteria listed in section I above were satisfied. There was so clearly no accord in this case that Winn LJ and Danckwerts LJ decided the case on Foakes v Beer grounds. First. for all Mummery LJ said in his concurrence was that there was a real prospect of success on the promissory estoppel issue. n15 Thirdly. Estoppel is a defence for debtors because of the acts of reliance that are only explicable in terms of the creditor's promise that part payment will do. The Limits of Foakes v Beer In addressing the question whether promissory estoppel can extinguish a debt. Lord Denning MR's dictum was at most a dictum in the context of his own judgment. in his Lordship's view. In the absence of a clear representation by the creditor that part payment would discharge the debt. He was clearly sceptical whether they had been in this case but was content to allow the appeal as only a triable issue had to be shown. as he was. was prepared to allow the extinction of a debt if there was a mere promise by the creditor to accept a part payment and the debtor paid that amount. n12 Although Longmore LJ agreed that the debtor's promissory estoppel defence might succeed if there were a trial and that the statutory demand should be set aside. no authority supports this proposition. It was. impossible to see any benefit to the creditor or detriment to the debtor in the alleged compromise. But they went bankrupt in 2002 and 2004 respectively and as Longmore LJ put it. n17 This judgment cannot be read as an unqualified acceptance of the proposition advanced by Arden LJ. then 'agreements which are said to forego a creditor's rights on a permanent basis should not be too benevolently construed'. So promissory estoppel cannot extinguish a debt through mere part payment. they would only have become bankrupt earlier'. No further act of reliance was required and the going back on this promise would be automatically inequitable. it was difficult to see how there could be a true accord. if D & C Builders Ltd v Rees is authority for the proposition that a creditor's promise to accept part payment followed by the debtor's actual payment of that amount is sufficient reliance for promissory estoppel. Something more must be found. n16 If promissory estoppel is capable of achieving the Law Revision Committee's recommendation.
but as they were not satisfactory to the other noble and learned Lords who heard the case. Since the judgment debt carried interest at 4 per cent a year and Mrs Beer had recovered judgment in 1875. I had persuaded myself that there was no such long-continued action on this dictum as to render it improper in this House to reconsider the question. whether merchants or tradesmen. do every day recognise and act on the ground that prompt payment of a part of their demand may be more beneficial to them than it would be to insist on their rights and enforce payment of the whole.. As stated above. Even where the debtor is perfectly solvent. I had written my reasons for so thinking.090 19s but Mrs Beer claimed a further £360 by way of interest. The ruling was that the landlord of a block of flats who had told the tenant that half rent would be acceptable for the duration of the Second World War could not recover the half . In the following often quoted words Lord Blackburn explained his reasons for agreeing with his brethren: What principally weighs with me in thinking that Lord Coke made a mistake of fact is my conviction that all men of business. Where the credit of the debtor is doubtful it must be more so. Dr Foakes's solicitor drafted the agreement which creditor and debtor duly signed.090 19s without interest clearly represented less than her full legal entitlement.. Dr Foakes's argument that he owed nothing more because he had paid the £2. then the ruling might have been different. was not encouraged to make a payment on the footing that he would not have to pay interest if he did. it was open for a debtor to make the argument that it had acted on a promise by the creditor to accept part payment and that the creditor could not go back on this.1 July and 1 January each year 'until the whole said sum of £2. n23 Whether this is strictly true it is clear that Dr Foakes. Only because of the narrow majority in favour of the construction that the agreement purported to take away Mrs Beer's right to interest was it necessary to rely on Pinnel's Case. had an effect not intended by her. All this appears distinctly unpromising for the argument presented in this article but there was more to Foakes v Beer than this. £2. Foakes v Beer is not a case where any promissory estoppel could have been raised and it is far from unreasonable to believe that had the facts been more like those of the debtor misled. n24 IV. By June 1882 Dr Foakes had paid the entire £2. n22 Remember also that Dr Foakes's solicitor had drafted the agreement and presented it to Mrs Beer for signature. It cannot be said with certainty that had there been some clear sign of estoppel. the agreement contained some recitals which offered some support to Mrs Beer's argument that the proper construction of the agreement required Dr Foakes to pay the interest as well as the judgment debt. the debtor.. I do not now repeat them nor persist in them.090 19s shall have been paid and satisfied . on its true construction. Promissory Estoppel-Suspensory or Extinctive? The argument presented above is to the effect that as there were no circumstances in Foakes v Beer capable of supporting anything like promissory estoppel. Lords Watson and Fitzgerald did not agree with this but Lord Watson was prepared to join his brethren in this construction. Even here Pinnel's Case was less than enthusiastically welcomed. though [Mrs Beer] was probably not coerced. The Earl of Selbourne said it should be followed because it had stood for some 280 years. The Earl of Selbourne LC and Lord Blackburn held that the agreement's plain meaning was that interest was not payable. The requirement of consideration was a useful tool for protecting her against trickery. n21 which had held that payment of a lesser sum on the due date or later did not discharge the debt.090 19s which it was agreed that he should pay was dismissed as incompatible with Pinnel's Case. Lord Watson said very much the same. and sure to pay at last.. Professor Treitel explains the importance of the consideration issue thus: . This was not quite the proposition which underpinned Denning J's judgment in Central London Property Trust Ltd v High Trees House Ltd n25 but the ruling in that case and more particularly the 'brilliant dictum' n26 of Denning J strongly supports it. In addition to the words quoted above. this often is so. the House of Lords would have said Pinnel's Case was conclusive. then the said Julia Beer undertakes and agrees that she will not take any proceedings on the said judgment'. she does appear to have been tricked into making a promise which. Lord Fitzgerald clearly regretted Pinnel's Case and doubted to what extent it had been followed.
But can we go further and rely on High Trees to support the proposition that Lord Denning MR (as he had then become) advanced in D & C Builders Ltd v Rees n32 that mere payment of the part of the debt requested is sufficient 'acting upon' to make the creditor's promise binding? It is submitted that it would not be right to go this far. Adherence to Foakes v Beer does not justify refusing to respect the creditor's autonomous choice that half a loaf is better than no bread. Clearly a judge sitting at first instance could not say that. His Lordship said: The logical consequence. Another curiosity about High Trees is that. to the extent I have mentioned. is that a promise to accept a smaller sum in discharge of a larger sum. as Professor Treitel pointed out. but the absence of anything capable of supporting a promissory estoppel in Foakes v Beer amply justifies Denning J's comment that extension to liquidated debts is a logical consequence. if the creditor promises to forgive part of a debt. n30 It probably was included when the judgment was revised for inclusion in the Law Reports. he was saying that Foakes v Beer was no longer the law. that result has now been achieved by the decisions of the courts'. but this does not require the conclusion that. the better view must surely be that to circumnavigate Foakes v Beer the conditions for a promissory estoppel must be satisfied. so much the better. just after the passage quoted at fn. because for the reasons stated there is no inconsistency between promissory estoppel and Foakes v Beer where the conditions for promissory estoppel are satisfied. the distinction between that decision and promissory estoppel in the context of liquidated debts is fragile. n29 What this dictum says is that circumstances giving rise to an estoppel were not considered in Foakes v Beer and that estoppel principles can apply to the discharge of liquidated debts as well as to periodic payments. True.rent foregone but could reinstate the full rent once the war emergency was over. The rent was a periodic payment obligation and the effect of the estoppel in that case was merely to suspend the right to receive full rent while the circumstances that prompted the landlord to promise acceptance of half rent prevailed. because only then did Denning J see the implications of his ruling for Foakes v Beer. whatever that means and whether or not it ever happened. But in the brilliant dictum referred to above. Denning J made no meaningful distinction between periodic payment obligations and liquidated debts. n27 The dictum is a little unclear in certain respects but this is only to be expected in a decision apparently delivered on the same day the case was heard. The tension between Foakes v Beer and liquidated debts is tighter than that between the same case and periodic payment obligations. 27 above. This approach is easier to reconcile with Foakes v Beer than a promise to accept part payment of a liquidated amount. the sentence '[T]hat aspect was not considered in Foakes v Beer (1884) 9 App Cas 605' only appears in the official law reports and not in the other four reports of the decision. His conclusion on that was expressed thus: 'It seems to me that. no doubt. That aspect was not considered in Foakes v Beer (1884) 9 App Cas 605. If Denning J was saying that Foakes v Beer no longer applied in the circumstances stated by the Law Revision Committee. . The reason why Denning J in High Trees and the House of Lords in Tool Metal Manufacturing Co Ltd v Tungsten Electric Co Ltd n31 allowed the creditors to reinstate their rights to the periodic payments owed was not that rights can only be suspended but that the creditors had only promised to suspend their rights to full payment. n33 Reading the words placed in emphasis in the context of the judgment as a whole. Denning J's judgment in High Trees is better understood as meaning that the original debt is discharged provided the conditions for promissory estoppel are satisfied. There can be no good reason for holding that. is binding notwithstanding the absence of consideration: and if the fusion of law and equity leads to this result. n28 Too much significance should not be attached to the fusion of law and equity. his Lordship did refer to the Law Revision Committee's Report and its recommendation that promises to accept part payments should be enforced without consideration. the creditor must be allowed to demand the balance after the debtor has relied upon this promise in making the part payment. if acted upon. The clinching argument for promissory estoppel potentially having extinctive effect on the original debt is that creditors should be estopped to the extent that they promise that contractual rights will not be enforced.
n36 Similar reliance principles underlay the High Court of Australia's 'minimum equity' in allowing promissory estoppel some offensive force in Waltons Stores (Interstate) Ltd v Maher. be distasteful that the creditor could in these circumstances recover more from the debtor than would have been the case had the debtor entered insolvency earlier. Lord Denning MR's dictum in D & C Builders v Rees goes too far. (3) the promise only becomes final and irrevocable if the promisee cannot resume his position . The respite from claims by all of the debtor's creditors is what the debtor foregoes in these circumstances and if the creditor were afterwards to seek payment of the remainder of the debt and thus push the debtor into insolvency. of course. This was probably not a meaningful act of reliance because the other partners might just have gone bankrupt as soon as they learned that the creditor was pursuing them. Janet O'Sullivan offered a defence of Foakes v Beer. as Longmore LJ pointed out. to say the least. which has been described as quasi estoppel and perhaps more aptly as promissory estoppel. But in principle this is the better position for the law to take. n40 Since reliance is the justification for promissory estoppel. subject to the qualifications (1) that the other party has altered his position. giving the promisee a reasonable opportunity of resuming his position. n41 Rather less . In fact the only significant support for promissory estoppel having an extinctive as opposed to a suspensory effect comes from a dictum of Lord Hodson in EA Ajayi v RT Briscoe (Nigeria) Ltd. (2) that the promisor can resile from his promise on giving reasonable notice.. n34 So the law has not developed to reach this absolute extinctive position since High Trees and it must be acknowledged too that there is little judicial support for the proposition that Foakes v Beer can be avoided where all the conditions of promissory estoppel are established. V. which was in any event a case of periodic payments (hire-purchase instalments): The principle. It must be extremely doubtful. It would. is that when one party to a contract in the absence of fresh consideration agrees not to enforce his rights an equity will be raised in favour of the other party. There must be something more that the debtor does or does not do to count as reliance and to make it inequitable for the creditor to go back on the promise to accept part payment. There probably is an act of reliance if the debtor foregoes an opportunity to enter insolvency or an individual or company voluntary arrangement immediately as a consequence of trying to work things out with the creditor. VI. This equity is. Reliance as the Key to Promissory Estoppel The principal reason why a contracting party who makes a clear and unequivocal representation to the effect that a contractual right will not be enforced in part or at all is the unfairness to the other party if it alters its position in reliance on this representation. however. which need not be a formal notice. the delay in obtaining this protection could be a significant loss. n39 but the prevention of the creditor's unjust enrichment would not be the reason for upholding the deal already made. There must be genuinely alternative courses of action that the debtor might have taken which it did not take because the creditor promised that part payment would suffice. whether there was any meaningful act of reliance on the part of Mr Collier in Collier v P & MJ Wright (Holdings) Ltd n38 (see section II above) because. the other two partners were in a sufficiently bad way financially that they both went bankrupt in the following few years. The House of Lords must be treated as having been aware of estoppel principles when it decided Foakes v Beer as Hughes v Metropolitan Railway Co n35 had been decided seven years earlier and Lords Selbourne and Blackburn had been members of both appellate committees.. n37 In the context of part payment of a debt the payment by itself cannot be reliance as the debtor was obliged to make that payment and more in any case. Reliance as the Key to All Renegotiated Contracts In an article published in 1996.Is it possible that the doctrine of promissory estoppel as developed by the courts over the last 60 years has reached the point where it is on all fours with the Law Revision Committee? The answer to this must be 'No' because there is no support for this proposition other than Lord Denning MR's support for it in D & C Builders Ltd v Rees. The most reasonable inference to draw from the failure of the House to mention Hughes in Foakes v Beer was the absence of any circumstances making it relevant.
as Foakes v Beer does not have the same precedential status in other common law systems. High Court of Australia. They only amounted to payment for the work he had actually done after the renegotiation at the renegotiated contractual rate. It is the debtor's reliance which creates the unfairness of the creditor going back on the promise to accept part payment. Reliance also suggests another way of dealing with cases on the pre-existing duty rule and allows for this rule and the part payment rule to be dealt with in a similar way. Chen-Wishart. R. this extinguishes the debt as opposed to suspending the creditor's right to recover it or giving the debtor time to pay. If the creditor tells the debtor that nothing more need be paid. Another 'joined up' solution comes from the decision of the New Zealand Court of Appeal in Antons Trawling Co Ltd v Smith n44 where Baragwanath J suggested that if contracting parties sufficiently clearly evidence their intention to renegotiate. n42 O'Sullivan's defence of Foakes v Beer is in a context separate from promissory estoppel. n3 (1884) 9 App Cas 605.needs to be said by way of refutation of this article than its title suggests. the damages awarded in Williams v Roffey did not compensate the subcontractor for his renegotiated contractual expectation. n43 This approach would offer one solution to the current unsatisfactory position that the pre-existing duty rule and the part payment rule are treated significantly differently despite the fact that both are essentially dealing with contractual renegotiations. This is a reliance measure. Return to Text FOOTNOTES: n1 See M. a contract consideration should not be required. Reliance is the basis for promissory estoppel. cannot be supported so far as it suggests that the mere payment of part of a liquidated debt at the creditor's request is sufficient to raise an estoppel against any attempt by the creditor to recover the remainder. logically the estoppel must be in terms of the representation. n2 To some extent accuracy has been sacrificed to succinctness in the statement of this element. HL. Halson. It has the merit of simplicity but the argument in favour of a reliance approach is that it takes the original contract more seriously and demands a finding of injustice before the promisee is allowed to escape from its effects. This is because it is suggested that a better way of approaching the pre-existing duty rule in the context of contractual renegotiations would be by protecting reliance as opposed to expectation. As Mindy Chen-Wishart has pointed out. Contract Law. VII. English law can probably continue to improvise its way through the current doctrinal problems but it is hoped that this article will assist in identifying a clearer approach for the future. 'The Offensive Limits of Promissory Estoppel'  LMCLQ 257. McKendrick. Cases and Materials. When it comes to promissory estoppel as a way around Foakes v Beer the argument is mildly supportive. But there must be a real reliance and this cannot be where the debtor merely makes the part payment requested and does nothing more. 2nd edn (Oxford University Press: Oxford. Conclusion The Collier v Wright case. which was the inspiration for this article. E. . This would presumably result in expectations being protected and would not require the court to enquire into whether the promisee had committed any sufficient acts of reliance. especially one which no longer appeals to the Privy Council. Abolition of the need for consideration in renegotiated contracts is another way of doing this but it is easier to do this in New Zealand than in England. See Waltons Stores (Interstate) Ltd v Maher (1987) 164 CLR 387. 2nd edn (Oxford University Press: Oxford. 2008) 16986. 2005) 243-7. The decision can be supported so far as it suggests that where the conditions for promissory estoppel are satisfied. The argument presented there is rather more of a criticism of the reasoning of the Court of Appeal in Williams v Roffey Bros and Nicholls (Contractors) Ltd. Contract Law: Text.
at . . n23 See Treitel.  BPIR 1452 at 1469.  BPIR 1452. n12  EWCA Civ 1329 at . per Longmore LJ. Adams and R. 2002) 24-9. n28 See Treitel. The Committee recommended that where there is only a promise to pay part of the debt and that promise is not kept. J. Consideration and the Critical Path' (1990) 53 MLR 536. n6 Ibid. n24 It is surely also significant that Hughes v Metropolitan Railway Co (1877) 2 App Cas 439. n9 Thus answering in the negative the question posed by Adams and Brownsword in J. n10  2 QB 617 at 625. n5  EWCA Civ 1329. 1468. at . n13  EWCA Civ 1329 at . Poole. Some Landmarks of Twentieth Century Contract Law (Oxford University Press: Oxford. 20 at 29. Casebook on Contract Law. 1468. n14 Ibid. Quoted at  EWCA Civ 1329 at . n15 Ibid. Cmd 5449 (1937) paras 33-35.g. 1468-9.  BPIR 1452 at 1468. n19 (1884) 9 App Cas 605. n25  1 KB 130. at . Brownsword. n17 Ibid. n26 As Arden LJ referred to it in Collier v P & MJ Wright (Holdings) Ltd  EWCA Civ 1329 at . 1469. n21 (1602) Co Rep 117a. per Arden LJ. n29 An illuminating study of this question may be found in A. had been decided seven years before Foakes v Beer. the original obligation should revive. Sixth Interim Report on The Statute of Frauds and the Doctrine of Consideration. 'Contract.  BPIR 1452 at 1462-4. Burrows. n11 Central London Property Trust Ltd v High Trees House Ltd  1 KB 130. 1469. above n. n27  1 KB 130 at 135. above n. n30 See Treitel.n4 See e. n7  1 QB 1. n16 Ibid. is quoted in  EWCA Civ 1329 at . the inspiration for High Trees. -. n8  1 WLR 474. 8th edn (Oxford University Press: Oxford. The relevant passage from the Law Revision Committee's Report. n18 Ibid. 20 at 26. 'We Do This at Common Law But That in Equity' (2002) 22 OJLS 1. 1469. at -. per Longmore LJ. above n. 20 at 32. n20 Sir Guenter Treitel. 2006) 159. n22 (1884) 9 App Cas 605 at 622. per Arden LJ.  BPIR 1452 at 1468. at . at .
above n. n37 (1987) 164 CLR 387. n38  EWCA Civ 1329.n31  1 WLR 761.  BPIR 1452. Restitution and Insolvency (Mansfield Press: London. 1995). 2000) 237. Rose (ed. LOAD-DATE: 09/02/2008 . n36 See Chen-Wishart. M. n41 J. Friedmann (eds. ss. Good Faith and Fault in Contract Law (Oxford University Press: Oxford. O'Sullivan. n35 (1877) 2 App Cas 439. Beatson and D. n40 On the restitutionary aspects of the insolvency voidable transaction provisions see A. Coote. 1 at 152. The case only concerned the pre-existing duty rule but there seems no reason to doubt that it applies also to part payment of debt. see B. 'In Defence of Foakes v Beer'  CLJ 219.). 'Consideration: Practical Benefit and the Emperor's New Clothes' in J.). n43 See Chen-Wishart. n34  1 WLR 1326. 1 at 169-70. 'The Recovery of Voidable Preferences: Aspects of Restoration' in F. PC. 'Consideration and Benefit in Fact and in Law' (1990) 3 JCL 23. Chen-Wishart. Keay. above n. n44  2 NZLR 23. n32  2 QB 617 at 625. n33  1 KB 130 at 135 (emphasis supplied). n39 Assuming that the earlier payment was not recovered as a preference under the Insolvency Act 1986. n42  1 QB 1. 239 or 240. For further criticism of Williams v Roffey.
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