Sorry chaps, I thought this thread had died a natural death after Ozdude's rather base (though wordless) contribution. Thus I started a new one with content as follows hereunder. I have now closed that thread (apologies to those who replied to it) in the hope that this one will continue. Be advised that the advice comes straight from a barrister who is representing a pilot in court against an airline suing for a bond in quite bizarre circumstances.
Most court actions with respect to the issue of pilot bonding have been argued on the ground that bonds represent a restraint of trade. This argument has so far not found favour with the courts. A better approach might be as follows:
A bonding agreement takes the form of a contract. A legally enforceable contract requires offer, acceptance and consideration. There must also be intention to be legally bound. Superficially, each of these requirements appears to be met in any bonding agreement that I’ve read (and I’ve now read quite a few). However, on closer examination it now seems likely that one vital element of the law of contract can be argued to be missing. That is the element of consideration.
In UK law, the test of enforceability is the requirement that consideration must be given in exchange for a promise. Consideration is said to be “the symbol of bargain and reciprocal obligations” and “[t]he law requires that the promisor [in this case the pilot] asks for and receives something in return for his promise” (Koffman L and MacDonald E, The Law of Contract, Tolley, Bath, 1995 at p.55). At first glance, it might seem that the pilot receives a type endorsement and this might be argued to be good consideration.
However, a promise to perform a public duty imposed by law may not be held to be sufficient consideration (for case precedent see Ward v. Byham and Collins v. Godefroy).
In bonding cases, the training that confers a type rating is required by various statutes (Air Navigation, Health and Safety at Work, etc.). Thus it is a public duty imposed by law. The duty is imposed upon the employer. Thus it may be argued that in offering to train a pilot to fly his aircraft type, the employer is doing nothing more than offering to perform an act which he is already legally obliged to perform, that this is not good and/or sufficient consideration, and that the contract is thereby unenforceable.
It was suggested that the pilot, in having the type endorsed upon his/her licence, obtains a benefit in that he/she may use that endorsement to fly that same type for another operator in the future. The answer appears to be that whatever might be done with the endorsement at some future date and in circumstances beyond the agreement in question is not relevant to the issue at hand. The only relevant issue is whether or not the bonding agreement is held to have been a legally enforceable contract at the time of its execution.
Comments, please?
[This message has been edited by tilii (edited 31 May 2001).]