[1] ‘THE IDEA OF CONSIDERATION’ (2011) 61(2) The

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1 Jill Poole– Textbook on Contract Law (11th edn, Oxford Press) 1202 Ibid 1213 Holdsworth WW, ‘Modern History ofthe Doctrine of Consideration.

‘ (1922) 2(2) BU L Rev 884 A. W. B. Simpson, A History of theCommon Law of Contract: The Rise of the Action of Assumpsit, (Oxford Press1975)5 (1951) 2 K.B. 2156 HenryWinthrop Ballantine, ‘Mutuality and Consideration’ (1914) 28(2) Havard LawReview 123 7 Dr Robert N Moles and Bibi Sangha– Consideration: in Acceptance of Contract

net.au/Contract/04Consideration.asp>10/12/20178 Peter Benson, ‘THE IDEA OFCONSIDERATION’ (2011) 61(2) The University of Toronto Law Journal 2429 ibid10 Henry Winthrop Ballantine,’Mutuality and Consideration’ (1914) 28(2) Harvard Law Review 12411Arthur T von Mehren, Civil LawAnalogues to Consideration’ (1959) 72 Harvard Law Review 100912(1842) 2QB 851; 114 ER 33013 JillPoole – Textbook on Contract Law (11th edn, Oxford Press) 12714 Ewan McKendrick – Contract Law(10th edn, Palgrave Macmillan, 2013) 7515 ibid 7616 CharlesFried – Contract as Promise: A Theory of Contractual Obligation (revised edn,Oxford Press, 2015) 2917 ibid 3018 (1809) 11 East 210; 103 E.R. 98519 A S Burrows; Ewan McKendrick –Cases and Materials on the law of Restitution (2nd edn, Oxford Press2005) 1420 (1934) A.C. 3221 ibid 22 Arthur T von Mehren, Civil LawAnalogues to Consideration’ (1959) 72 Harvard Law Review 100923 Mark B Wessman, “Should We Firethe Gatekeeper? An Examination of the Doctrine of Consideration” (1993) 48:1University of Miami Law Review 4624 CharlotteMary Boardman, “Considering Consideration: A Crtical And Comparative Analysisof The Doctrine of Consideration in the Anglo- Canadian Common Law” (Master’sThesis, Universisty of British Colombia 2013) 7525 ibid 7926 (1972), 28 DLR (3d) 358 (B.C.

S.C.)27 ibid28 ibid29 (1842) 2 QB 851; 114 ER 33030 ibid31 Charlotte Mary Boardman, “ConsideringConsideration: A Crtical And Comparative Analysis of The Doctrine ofConsideration in the Anglo- Canadian Common Law” (Master’s Thesis, Universistyof British Colombia 2013) 8132 ibid 8033 Jill Poole – Textbook on ContractLaw (11th edn, Oxford Press) 15234 (1877) 2 AC 43935 ibid36 Jill Poole – Textbook on ContractLaw (11th edn, Oxford Press) 12937 Mark BWessman, “Should We Fire the Gatekeeper? An Examination of the Doctrine ofConsideration” (1993) 48:1 University of Miami Law Review 9838(1980) 492 F. Supp.

294 39 ibid 30340 ibid41 Mark B Wessman, “Should We Firethe Gatekeeper? An Examination of the Doctrine of Consideration” (1993) 48:1University of Miami Law Review 99     Inview of the discussion above, it shall be useful to evaluate the actual value oft Tocomment further on the convolutedness of the doctrine, one must remember thatto administer the application of consideration, certain conditons are to be met.Hence it is important to deliberate how likely it is for these conditons to bemanipulated in such a manner, which may lead to an unjust outcome. Mark BWessman particularly highlighted this issue in relation to past consideration.This concept defines contracts which allegedly exist based on an act followedby a promise, and such a promise cannot be enforced by the courts.36 Accordingto Wessman it has come to appear that the doctrine of past consideration isparticularly exploited in a way so one can avoid establishing the actual makingof the alleged promise, the circumstances in which it was made, or theexistence of any past benefit- especially in cases where the promisor haspassed away.

37The misapplication of the rule can be detected in Tim W. Koerner & Associates, Inc. v. Aspen Labs, Inc,38 where thecourt held that the ‘override’ agreement that was made between Aspen and Zimmerto compensate the old distributors of Aspen that Zimmer had acquired was unenforceabledue to it being based on past consideration.

39 But in actualfact the distributors would indeed have the right to enforce the promise asthird-party beneficiaries. This was becaue as part of the attainment of Aspenby Zimmer,  Zimmer had “promised to retain or pay Aspen’s olddistributors and the two parties intended to benefit the distributors”40-hence the consideration that maintained the acquisition between the two, also consitutuedto support the promise for the benefit of the distributors.41 Portraynghow having such Itaddition to this, promissory estoppel is another concept which adds to thecomplexities of consideration as it theoretically undermines it. It wasdeveloped to fundamentally enforce a promise where formal consideration absent.33 One canargue that this equitable doctrine almost performs  the contrary to what consideration enforces-rather than being restricted to a formal requirement, it allows the law to takemore accommodating approach in accordance to whatever case that is indelieberation.

This is demonstrated in the case of Hughes v Metropolitan Railway Co34 where thecourts intended to protect the tenant because it would be unreasonable for themto fulfil the initial request of maintainance of the  premise, when in fact both parties were occuppiedin sale negotiations regarding it. Hence, it was inequitable to include thetime during the negotitions in the initial six months- the defendants relied onthis implied promise hence estoppel was applied, not finding them liabledespite the fact there was no consideration to support it.35 As onecan observe promissory estoppel has a rationale of its own and althoughprovides flexibility, can again bring unclarity in judicial decisions when the requirementof concrete consideration is still in the legal picture.

 Academicshave even went on to asses how consideration can be used as a ‘mask’ todisguise the actual reasoning behind judicial decisions- such as morality basedfairness rather than objective legal anylsis.25 This isillustrated in the case of Harding vHarding,26 wherethe court held that an agreement stating the husband could purchase the wife’sshare in their family home for just $1 was contractually invalid27 due to itbeing ‘nominal’ consideration. Nonetheless the circumstances that accompaniedthis agreement also favoured it to seem unfair, as the husband was seen to betaking advantage of the wife’s vulnerable position whom had just returned fromeloping with another man, desperate to save her marriage.

28 Hencewhen looking at the facts it seems logical for the court to decide against theenforcement of the promise. However contrasting this to a case previouslymentioned Thomas v Thomas,29 in which the widow’s nominal rent of£1 was held to be good consideraton30, comfirmsthe court’s ability to apply the same doctrine in different ways to ensure afair judgement. One would presume the consequential result of leaving a widowhomeless in this instance highly contributed towards the outcome of the case.And although this may seem advantageous for the doctrine, the non-uniformityits application  possesses, can beproblematic by bringing ‘lack of trasparencyand uncertainty’31 into the legal system.

32  Referringto von Mehern’s appraisal mentioned above, describing the doctrine as “ambitious”22 one canimmediately note the adverse connotations the term emits. This could beassociated to the said convolutedness of the doctrine- nevertheless it isexceptionally important to try devise the process of how consideration evolvedto appear so complex. Traditionally, the doctrine was said to have a ‘gatekeeping function’ where it ‘sorted promises into two classes- bargainpromises and gratuitous promises’23.However academics have come to argue that because exceptions to the doctrinehave been established, it fails to be as uniformly applicable to every case,which as a result has blurred its rules and its meaning.24  Moreover,consideration is also afflictive as it can corroborate an appropriate measureof relief if the promise is not consummated.16 Withoutconsideration- an explicit exchange said to be present, it would be extremelydifficult to decipher the degree of damages17 and theoutstanding compensation the plaintiff is owed when due performance of promisefails to occur.

In cases such as Rugg vMinett18,the payee’s right to retain the money that was given to them solely on theterms of the contract performance was terminated. As a result, the claimantscould fully recover the original payment they gave for the casks. It was due tothe clearly stated, original consideration between the two that allowed theunquestionable recovery of the price.

19 Thisprinciple can be further replicated in FibrosaSpolka Akcyjna v Fairbairn Lawson Barbour Ltd,20where it was again, seeing the definite exchange between the two parties- thatstated the consideration, which allowed the claimants to receive theirrestitution of £1000,21 Eventhough the circumstances of this case were extensively different to the first,the underlying idea that failure of consideration occurring allows fair reimbursement,is ideally a highly important consequence to consider when analysing thedoctrine and its value wholly. ProfessorArthur Taylor von Mehern went on to assess, “Consideration stands, doctrinally speaking, at the very center of thecommon law’s approach to contract law. It represents an ambitious and sustainedeffort to construct a general doctrine”11This statement depicts a very well-rounded approach to consideration, but thephrase to highlight here is the ‘sustained effort’ to execute the doctrine,which can be demonstrated in many cases where consideration is given a pivotalstatus of significance. An example of such is illustrated in the case of Thomas v Thomas, where the widow of MrThomas was not allowed to stay in their residing house after his death as hehad not defined it to be permitted in his will. However, it was held that heragreement to pay a minimal rent of £1 a year sufficed as good consideration,therefore the resulting contract was valid and could be enforced.12 Thesignificance consideration the concept itself is given, is clearly illustratedin this occurrence- although the payment may appear inadequate and minutecompared to normal commercial rents, in the eye of the law it is still seen assufficient. This very finely links to a set rule of the doctrine statingconsideration “must be sufficient butneed not be adequate.”13 The mere implementation of such a rulereinforces how critical it is for an exchange of something to transpire- as itallows both parties to acquire an obligation towards the agreement.

14 Withoutthis, the transaction would simply be viewed as voluntary gift,15 hencesignifying how fundamental consideration is. Todetermine the relevant value of the doctrine, it is crucial to understand whyconsideration is regarded with such importance and is sought to be needed incontractual agreements. The basis of consideration exemplified the idea ofreciprocity in dealings between individuals6, relatingto the notion of a ‘quid pro quo’.7 Hence forthe first time ever providing a generic requirement to be fulfilled bynon-formal agreements in practice. As stated,”without consideration, no promise was actionable in assumpsit”8and it was this action-like attribute which would subliminally favour theplaintiff’s interests and contribute towards its enforceability.

9 Thereforefrom the late sixteenth century, consideration itself ensured a somewhatguaranteed liability which has now evolved to be perceived as ‘contractual’.10   Withreference to relevant case law as well as legislation, this essay shallconsider the convolutedness of this doctrine to determine whether it shouldremain an obligatory element. As well as determining its significance, to weighthe possibility of its reform or utter eradication from contract law. Considerationhas seen to be always regarded as an essential element to be present in theformation of a legal contract. In its ultimate simplicity, consideration isdefined as “an act or a promise given inexchange for a promise.”1It is this cardinal component that allows the English Law to only enforce amutual bargain between parties rather than a said gratuitous promise from oneparty to another.

2The concept of consideration itself is deeply rooted- the idea that a “nude pact was not enforceable” wasadopted very early on from the Roman Law3. Itevolved further becoming a central requirement of the action of assumpsit,tracing back to the 14th century, it had persisted to be proceduralaction that would be taken for the breach of a regular contract.4 Howeverthere are certain principles that have been established to govern the doctrineof consideration, to which some academics argue have complexified to an overlyelaborate degree over the years. Therefore, have come to enquire thepossibility of abolishing the necessity of the doctrine completely. Nonethelessas Lord Denning in the judgment of Combev Combe eminently affirmed, “thedoctrine of consideration is too firmly fixed to be overthrown by aside-wind.”5

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