Victim of Formality

Gilbert Steel Ltd. v. University Const. Ltd.
(1976), 12 O.R. (2d) 19, 67 D.L.R. (3d) 606 (C.A.)

Both A and R had orally agreed
to change the contract price A billed for steel.
But when the bill came R would not concede
the obligation owed to A was real.

“Consideration wants: he cannot sue.
I promised much—in what way has he paid?”
“But surely, A replied, I lost my due
under the first when second contract made.”

“‘Tis clever, said the judge, but you had pled
you understood the contract was the same.
You could but gain! Be fair? I’m sure you’ve read
estoppel’s a defence, but not a claim.”

A change in terms, and cost’s negotiable,
needs quid pro quo to be enforceable

We got our first assignments back about 15 minutes ago, and some were disappointed.

“So basically the TA’s saying that we should keep our case briefs simple.”
“Not in iambic pentameter then?”
“Well…”

Household Fire & Carriage Accident Insurance Co. v. Grant
(1879), 4 Ex. D. 216 (C.A.)

The Court declared the post office should be
An agent of the contracting parties.
And if acceptance there deposited,
The contract is then formed, and not when read.

It’s not all memorizing the criminal code:

Although the debates in the United States and in Europe pivoted around the respective advantages of the two models [Auburn and Pennsylvania] of penitentiary discipline, its is important to realize that, notwithstanding their diversity, the separate and silent systems had a common basis. In a report made to the New York legislature in 1867, E.C. Wines and Theodore Dwight described that common basis in this way:

Isolation and labour lie at the foundation of both. They are fundamental principles of both, according to the ideal on which they were formed. The difference is one of application; of mode, and not of principle. In one the isolation is effected by an absolute bodily separation by day as well as by night, and labour is performed in the cell of each individual convict. In the other, labour is performed in common workshops and the isolation at night is secured by the confinement of the prisoners in separate cells, but during the day is of a moral species, being effected by the enforcement, so far as such a thing is possible, of an absolute silence. The bodies of the prisoners are together, but their souls are apart; and, while there is a material society, there is a mental solitude.

Michel Foucault, while agreeing that isolation and labour were the common principle around which both the Auburn and Pennsylvania systems were organized, expressed the differences in more graphic terms: ‘Auburn was society itself reduced to its bare essentials. Cherry Hill was life annihilated and begun again.’

The debate that took place on both sides of the Atlantic about the relative advantages of the two systems was not an empty one, however. As Foucault states, ‘a whole series of different conflicts stemmed form the opposition between these two models: religions (must conversion be the principal element of correction?), medical (does total isolation drive convicts insane?), economic (which method costs less?), architectural and administrative (which form guarantees the best surveillance?). This, not doubt, was why the argument lasted so long.

While the influence of the American experience with the two models of penitentiary disciplines was to be felt throughout Europe, it was particularly influential in England. It is important to consider the way in which the American experience was evaluated and implemented in England, because in turn that system came to influence events in Canada. The overcrowding in the English prisons brought about by an increase in the crime rate in the wake of demobilization after the Napoleonic Wars led to the abandonment of the regime of solitary confinement in the institutions that had sought to introduce it. In its place and under the influence of the American experience in Auburn and Sing Sing the rule of silence was extended, and in the 1820s and 1830s the silent system, along with the introduction of the bread-and-water diet and the treadwheel, usher in an era characterized by an escalation in repressive measures directed against prisoners.

—Michael Jackson, Prisoners of Isolation: Solitary Confinement in Canada (1983)