For many centuries, the doctrine of
consideration has been regarded as an essential element of a legally binding
contract; along with offer, acceptance and intent to create legal relations.
But many critics have questioned the true usage of it because of the way judges
treat different cases as well as the many conditions required for consideration
to be valid. Many have argued that parties should not give consideration when
creating a contract, whereas others disagree. In it’s original form, the doctrine
was founded upon the principle of reciprocity and the idea that a promise
should not be enforceable if nothing has been given in return.1

According to John Wilson Twyford, since 1809
common law says if a party promises to do an act and they are legally bound to
perform it, that is not good consideration.

 

It is widely regarded as one of the most
problematic contract law doctrines present within common law. 2
It has been argued we can no more abolish one element of a contract without
destroying the others; it is like a circle without a circumference.3

Critics have questioned its real use in the law
of contract because judges treat cases differently and there are many
conditions needing to be met for consideration to be valid. Many think it is
not needed whereas others disagree.

 

In English Law, a promise becomes binding
either through consideration or a deed. French law doesn’t require
consideration, instead based more on theory of autonomy and consent. Faces
criticism for this because other European civil law systems have no necessity
for the element. In England gifts are not considered as contracts, differently
from 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 or
responsibility given, suffered or undertaken by the other” per Lush LJ. Both
parties need to make an exchange of an economic value for there to be an
intention to create legal relations.  Approved
by 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 which
the promise of the other is bought, and the promise thus given for value is
enforceable.”6
This was initially put forward by Sir Frederick Pollock in his book “Pollock’s
Principles of Contract”7

 

Executory v Executed-

There is an inconsistency in the application
because judges are unwilling to be strict in some cases, and lack understanding
and knowledge in a topic.8
Consequently, the law of contract is uncertain and in doubt. In the case of
Ricketts v Scothorn9,
the issue was whether the promisee could still rely on a promise even without
consideration because of their weakened position. The courts found the
plaintiff so heavily relied on the promise of the money that it created a
promissory estoppel. Lack of consideration was a defence.