The Role of Consideration in the English Law of Contract

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Based on common law and precedent, the English law of contract has been formulated and developed over a number of years with it’s primary purpose to provide a regulated framework within which individuals can contract freely. In order to ensure a contract is enforceable there are certain elements which must be satisfied, one of which is the doctrine of consideration. Lord Denning famously professed; “the doctrine of consideration is too firmly fixed to be overthrown by a side wind” . This is a crucial indication that consideration has long been regarded as the cardinal ‘badge of enforceability’ in the formulation and variation of contracts in English common law. The most authoritative definition of consideration stems from Currie v Misa in which the judgement of Lord Justice Lush defines consideration as “some right, interest, profit or benefit accruing to the one party, or some forbearance, detriment, loss or responsibility given, suffered or undertaken by the other.” Consideration is therefore, in essence, the price for which a promise is bought. Normally, a promise cannot be contractually binding unless it is supported by some form of consideration and there are numerous rules surrounding it’s successful operation. These include: consideration must move from the promisee, consideration must not be past and consideration must be sufficient but need not be adequate. Despite it’s longevity, consideration is not without criticism. Lord Goff observed in White v Jones that: ‘our law of contract is widely seen as deficient in the sense that it is perceived to be hampered by the presence of an unnecessary doctrine of consideration’. Abolition has been urged. Since the publication of the Law Revision Committee’s report in 1937, la... ... middle of paper ... ...‘Consideration: Practical benefit and the Emperor’s new clothes’ in Beatson and Friedmann (eds). Good Faith and Fault in Contract Law (Oxford University Press, 1995); Hird and Blair, ‘Minding your own business – Williams v Roffey revisited: Consideration reconsidered’ [1996] JBL 254 E.G. Lorenzen, Causa and Consideration in the Law of Contracts (1919). Faculty Scholarship Series. Paper 4560. ‘Contract Law: Fulfilling the Reasonable Expectations of Honest Men’ (1997) 113 LQR 433, 437 European and International Statute Austria (z Stubenrauch, Commentar zum iisterreichischen allgemeinen biirgerlichen Gesetzbuche (6th ed.) sec. 86I, p. 5) Civil Code; Argentina, Arts. 533, 534. 536 Civil Code; France, Arts. 1108, 1131-1133 Civil Code; Holland, Art. 1371 Civil Code; Italy, Arts. 1104, 1119, II22 Civil Code; and Spain, Arts. 1274-1275. Civil Code; France, Article. 1131
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