[ql06] Re: CONTRACT: Orchard v. MacKay and PC Party
- From: Steve Kennedy <2srk@xxxxxxxxxxxxxxxx>
- To: ql06@xxxxxxxxxxxxx
- Date: Fri, 21 Nov 2003 15:33:46 -0500
Ken Campbell wrote:
>[snip]
>I don't have the time right now to apply our contract studies to this --
>I will try sometime later. But it sure is interesting.
>
>At the end of the day, Orchard is probably using the court system to get
>major publicity for the issue.
>
>Ken.
>
>
[snip]
>
>
Orchard may have difficulty getting his contract enforced.
According to Fuller, there are three questions that help determine
whether a promise should be enforced:
1. Is there clear evidence of a promise and of other factors that
suggest it should be enforced?
There is clear evidence of a promise. It was made in writing by a lawyer
(MacKay's a Dalhousie L.L.B.). The factors that suggest it should be
enforced are:
a. Promise in a commercial exchange. Applies to this K? No.
b. One party has performed an obligation and wants the court to get
the other party to uphold its side of the bargain. Applies to this K? Yes.
c. Strong evidence the promise was made with deliberation. Applies
to this K? Doubtful.
d. One party has relied on the other party in circumstances where
this reliance requires protection. Applies to this K? Maybe.
So Orchard's got only one clear Yes to the above conditions.
2. Is there evidence that the promisor was aware that he was undertaking
a legally enforceable obligation?
There is evidence of an obligation, since the promise was made in
writing. However, MacKay may have undertaken the promise on the basis
that it was, for a number of reasons, legally unenforceable. These
reasons include:
a. Non-commercial K.
b. Unconscionable bargain, i.e. duress, overreaching in the
bargaining process.
c. Lack of consideration. (There may or may not have been financial
consideration. Any other kind is weak by comparison.)
In my opinion, Orchard's got a weak Maybe in answer to this question.
3. Is the promise one that is common or typical of commercial exchanges?
Clearly, Orchard's got a No here.
Fuller's test aside, we have policy considerations, the main one being a
floodgates concern: Do courts really want to start holding politicians
to their promises?
Good God, that would be contrary to parliamentary tradition,
independence of the legislature, and peace order and good government!
Besides, it would clog up the courts for years.
My money's on Orchard failing on this one, though as Ken points out, a
legal victory is probably not Orchard's goal. Political embarrassment
for MacKay is the true goal, and in this regard Orchard is likely to
succeed. A legal victory would be icing on the cake. Good luck to him!
Other related posts:
