For many centuries, the doctrine ofconsideration has been regarded as an essential element of a legally bindingcontract; along with offer, acceptance and intent to create legal relations.But many critics have questioned the true usage of it because of the way judgestreat different cases as well as the many conditions required for considerationto be valid. Many have argued that parties should not give consideration whencreating a contract, whereas others disagree. In it’s original form, the doctrinewas founded upon the principle of reciprocity and the idea that a promiseshould not be enforceable if nothing has been given in return.1According to John Wilson Twyford, since 1809common law says if a party promises to do an act and they are legally bound toperform it, that is not good consideration. It is widely regarded as one of the mostproblematic contract law doctrines present within common law.
2It has been argued we can no more abolish one element of a contract withoutdestroying the others; it is like a circle without a circumference.3Critics have questioned its real use in the lawof contract because judges treat cases differently and there are manyconditions needing to be met for consideration to be valid. Many think it isnot needed whereas others disagree. In English Law, a promise becomes bindingeither through consideration or a deed. French law doesn’t requireconsideration, instead based more on theory of autonomy and consent. Facescriticism for this because other European civil law systems have no necessityfor the element.
In England gifts are not considered as contracts, differentlyfrom France. The approaches to the institute are also very different. 4 The notion was defined in Currie v Misa5″a valuable consideration…may consist either in some right, interest, profit,or benefit accruing to the other party or some forbearance, detriment, loss orresponsibility given, suffered or undertaken by the other” per Lush LJ.
Bothparties need to make an exchange of an economic value for there to be anintention to create legal relations. Approvedby the House of Lords in Dunlop Pneumatic Tyre Co Ltd v Selfridge and Co Ltd.”An act or forbearance of one party, or the promise thereof, is the price for whichthe promise of the other is bought, and the promise thus given for value isenforceable.”6This was initially put forward by Sir Frederick Pollock in his book “Pollock’sPrinciples of Contract”7 Executory v Executed- There is an inconsistency in the applicationbecause judges are unwilling to be strict in some cases, and lack understandingand knowledge in a topic.8Consequently, the law of contract is uncertain and in doubt. In the case ofRicketts v Scothorn9,the issue was whether the promisee could still rely on a promise even withoutconsideration because of their weakened position.
The courts found theplaintiff so heavily relied on the promise of the money that it created apromissory estoppel. Lack of consideration was a defence.