RATIONALISING the doctrine of anticipatory breach is notoriously difficult. This may explain the complete lack of attempt by the UK Supreme Court to address its conceptual difficulties in its recent judgment in Bunge SA v Nidera BV [2015] UKSC 43; [2015] 3 All E.R. 1082. It is therefore of interest that the Singapore Court of Appeal in The “STX Mumbai” [2015] SGCA 35; [2015] 5 S.L.R. 1 explained why the doctrine of anticipatory breach can be applied to executed contracts (in the sense of being fully executed by the innocent party). Whilst anticipatory breach applies similarly under English law, the English courts have never considered the underlying justification, save to say in a case with a partially executed contract that “it would be very strange and hardly unworkable” if the innocent party had to wait until the time for performance (Moschi v Lep Air Services Ltd. [1973] A.C. 331, 356, per Lord Simon).

The practice of “lifting the veil” from the modern company seems at times to be regarded as a sign that corporate personality is a ficition. This view is hardly logical: if the personality of the company were a ficition, there would be no veil to lift, the liability of the company must be the liability of the members, and limited liability must be an illusion. It is precisely because the legal personality of the company is real that special arrangements must be made for lifting the veil of this personality when it conceals the wrongdoing of a member or director. To use a more florid metaphor, when the powerful hoofs of the pantomime horse are used for improper kicking. Back Legs will be stripped of his protective covering, and made to account for his use of an engine of destruction more powerful than his own boots—on exactly the same principle as if he were made to account for his use of a natural horse's to cause damage. It makes no difference whether he sits on the horse's back or stands inside its skin; and it makes no difference to the man's liability for wrongful use of the horse whether the horse has a legal personality or not. (It may of course make a difference to what the victim does about it, since he may have good reasons for choosing to sue the horse rather than the man.)

This paper aims to defend what many academic commentators regard as indefensible—the rule in Foakes v. Beer.

For almost four hundred years (since Pinnel's Case) English law has been clear: the payment of, or promise to pay, a smaller sum than the amount due does not discharge the debt, since the debtor provides no considerationfor the creditor's promise to waive the balance—there is no “accord and satisfaction”. The House of Lords approved this rule, albeit reluctantly on the part of Lord Blackburn, in Foakes v. Beer.

I may, I hope not inappropriately, begin by recalling a story told by our Chairman's distinguished predecessor, Sir William Anson, about Mr. Gladstone. While he was out of office, in 1890 Mr. Gladstone accepted an invitation to visit All Souls. The invitation included a request that he would give some kind of an address to the members of the Union Society, which had been the scene of his triumphs as an undergraduate sixty years ago. He agreed to do so and in a discussion with his host, the Warden of All Souls, as to a choice of subject Mr. Gladstone said that the subject did not very much matter provided it was one of general interest. He was thereupon persuaded to choose his own topic, and in due course he gave an eloquent address to a large undergraduate audience on ‘The Connexion of Homer with recent Assyriological Discovery’.