Introduction Consideration is often defined as “a detriment voluntarily incurred by the promisee… or a benefit conferred on the promisor in exchange for the promise.”1 Whilst the doctrine of consideration does, in some cases, cause parties to experience injustice, sometimes something that the courts fail to resolve, consideration is a crucial element to the formation of a legally binding contract. This paper will not only explain why the High Court should not abolish the requirement for consideration but will also highlight its usefulness in contract formation. Origin of the Doctrine of Consideration The origin of the doctrine of consideration can trace its roots back to the 16th century when it became apparent for English courts to decide which parol promises were legally binding. With the growing concern that the range of promises for which a person could be held liable were becoming too wide, the courts began to look at the reasons for the promises.2 Coote argues that the idea of consideration can trace itself back even further, with examples such as “an exchange of tokens, shaking hands… and touching the ground”3 warranting the idea that people throughout history have made promises with the intent that they be legally enforced rather than simply be seen as statements of intention. Why the Doctrine of Consideration should not be abolished One of the primary reasons as to why consideration should not be abolished follows this idea, that parties who seek binding contracts are doing so in order to ensure the reliability of the other party. Thus, if consideration were to be abolished these agreements would be mere promises that carry no legal weight3 and undermine the essence of contract. Pao On v Lau Yiu Long (1980) provides ... ... middle of paper ... ...s would consider themselves bound to an agreement, but consideration does a good job of this already. Works Cited 1 Edward Jenks, The History of the Doctrine of Consideration in English Law (Cambridge University Press, 1892) 3. 2 John Cotter, A Modest Attempt to Demystify the Doctrine of Consideration, 17/09/2013, Academia, . 3 Brian Coote, ‘Consideration and the variation of contracts’ (2003) 3 New Zealand Law Review 361, 376. 4 Eg, Wright, ‘Ought the Doctrine of Consideration to be Abolished from the Common Law’ (1936) 49 Harvard Law Review 1225. 5 Brian Coote, ‘Consideration and the variation of contracts’ (2003) 3 New Zealand Law Review 361, 377. 6 Antons Trawling Co Ltd v Smith (2003) 2 NZLR 23, 23. 7 Musumeci v Winadell Pty Ltd (1994) 34 NSWLR 723.
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ABSTRACT: A commonly accepted criticism of the social contract approach to justifying political authority targets the notion of hypothetical consent. Hypothetical contracts, it is argued, are not binding; therefore hypothetical consent cannot justify political authority. I argue that although hypothetical consent may not be capable of creating political obligation, it has the power to legitimate political arrangements.
Having evaluated the current state of English contract law, mainly made up of piecemeal solutions, it can be seen that despite being satisfactory and doing its job, there still remain gaps within the law of contract where unfairness is not dealt with. Moreover, due to the ad hoc nature of those piecemeal solutions, the latter have often produced inconsistent justice and have manifested cases of unfairness. Hence, “a relatively small number of respected Justices have endeavored to draw attention to the fact that the application of a general principle might be useful and even necessary in English law.”
Mr Justice Wilson, ‘Lectures on Advocacy and Ethics in the Supreme Court’ (1979) 15 Legal Research Foundation Inc.
Of all the topics as discussed in the class, the topic consideration has greatly drawn my interest and I got eager to find the appropriate meaning of Consideration in accordance to the Indian Contact Act (1872). The meaning of the term consideration is defined in Section 2 (d) of the Act is somewhat different from how the word ‘Consideration’ is understood in ordinary parlance. In this response paper, I seek to explore the specific manner in which the Contract Act defines ‘consideration’ and how such a definition fits in with the general scheme of the Contract Act, with the hope of responding to some of the difficulties the definition of consideration raises for contract law.
If English law decided to abolish the doctrine of consideration, it would rely on alternative methods such as promissory estoppel to replace the role of consideration in filtering out non-contractual agreements. The outcome of using alternative methods rather than consideration would impact on case precedency and it would change the formation of contracts as consideration is a key element in forming a contract. However, since there have been legitimacy and applicability issues raised regarding the doctrine of consideration, it seems necessary to look into the possible abolishment of consideration and find an alternative method to fill its role in contract law. This alternative method could be promissory estoppel if it wasn’t limited to a defence role, but also as a cause of action.
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Consideration is anything of value promised to another when implied a contract. It is a promise, made in writing and signed by the person to be charged.Under section 2(d) of contract act 1950 define as promise has done something promise to
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