A contract is the most obvious manifestation of law in everyday life. In a legal point of view, not all agreements are seen as enforceable contracts. Indeed, each legal system introduced some rules in order to determine which agreement is enforceable; this corpus of rules is called "the badge of enforceability". In English law, the original principle of this "badge of enforceability" is the doctrine of consideration. Consideration is classically defined with reference to the case of Currie v Misa which held that: "a valuable consideration, in the sense of the law, may consist either in 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." This is the orthodox view of consideration that is defined as benefit and detriment. The rule of consideration can be divided into three issues: consideration must be sufficient but need not be adequate, past consideration is not good consideration and it must move from the promise.
[...] But the uselessness of the doctrine of consideration appears when, in Dunlop Pneumatic Tyre Company Ltd v. Selfridge[9], it was held that the reason the party can not enforce the promise was linked to the lack of consideration (as in Tweddle) but Viscount Haldane argued that does not matter the need of consideration, it is a key principle in the common law that “only a person who is a party to the contract can sue on it”. It can be observed that there is no real difference between the privity and the consideration rule that the promise must move from the promisee, the later being the basis of the former, but unfortunately for the consideration rule, this is the argument of Viscount Haldane which id kept by the House of Lords in two cases: Midland Silicones Ltd v. [...]
[...] In the absence of economic duress, courts used consideration. Economic duress was defined later by Kerr J in Occidental Worlwide Investment Corporation v. Skils Avanti (The Siboen and the Sibotre)[4] and later Stilk was recognized as an economic duress case. But economic duress is more regarded nowadays as a regulator of contract modifications. This is the reason why Hobhouse said that: “now that there is a properly developed doctrine of the avoidance of contracts on the ground of economic duress, there is no warrant for the court to fail to recognize the existence of some consideration even though, it may be insignificant and even though there may have been no mutual bargain in any realistic use of that phrase.” It means that courts should be ready to find consideration easily now that they know they can set aside a contract on economic duress. [...]
[...] As a result, it becomes irrelevant that the promisee has provided anything in exchange in terms of benefit to the promisor. To conclude the basic role of consideration rule in law of contract seems to be no more fundamental to make a contract enforceable. This is one of the reasons why it can be said that the doctrine is irrelevant. Another doctrine tends to make consideration disappear. Indeed, the historical development of the doctrine of the privity has an important link with the doctrine of consideration. [...]
[...] It can be argued that consideration is treated as a more flexible concept than the orthodox definition in Currrie v. Misa. But it must be said that Atiyah does not totally reject the orthodox conception: “benefit or detriment is normally a good reason for enforcing a promise” but this feature of consideration is just one of the aspect of the actual doctrine. Indeed Atiyah recognizes that law of contract needs new legal doctrines to be able to answer to the evolution of the society which also means the evolution of contracts. [...]
[...] Each of them, within their own field seems to be more adapted to the evolution of the contract. Even though consideration was the basis of the development of these doctrines it appears that consideration was seen in a too strictly way to be effective in new legal situation and we progressively assist to an overtaken of the orthodox doctrine in terms of benefit/detriment. Nevertheless, some important consequences of the doctrine (as the absence of enforcement for non onerous promise) are still relevant in terms of judicial security and even though this doctrine was the battleground of important scholars each of them found the adaptability of the doctrine like a relevant point for the law of contract. [...]
APA Style reference
For your bibliographyOnline reading
with our online readerContent validated
by our reading committee
