The Origin of the Doctrine

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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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