• Join over 1.2 million students every month
  • Accelerate your learning by 29%
  • Unlimited access from just £6.99 per month

"The requirement of consideration is an unnecessary complication in the formation of contracts."

Extracts from this document...

Introduction

Elements of the law of contract Zone A examination paper Question 1 "The requirement of consideration is an unnecessary complication in the formation of contracts." Consideration is probably regarded as one of the most controversial issues in the law of contract. The traditional and/or orthodox doctrine is based on the principle of "reciprocity", which seems to suggest that a promise given should be exchanged for something in return. The requirement of Consideration was established since the sixteenth century in Common Law. The first mention of which had been in the form of quid pro quo, inter alia, a promise for a promise, and later, it was acceptable that even a detriment or forbearance like fulfilling the promise to marry such as in the case of Shadwell v Shadwell[1860] would be sufficient consideration. Consideration was first associated with debt such as in the Pinnel's case and had subsequently spread to other simple contracts. This has been criticized by Lord Mansfield in 1756, and was in view that it could only be treated as evidence of the parties' intention and held that a moral obligation should be sufficient consideration. It was only in the case of Eastwood v Kenyon[1840] that Lord Denman confirmed that the law required some factor additional to a defendant's promise, which is, consideration, whereby the promise becomes legally binding. So, if a party makes a promise and the other party offers nothing in return, such a promise will be nudum pactum or gratuitous and unenforceable for lack of consideration. It should be noted that consideration is a necessary element in all simple contracts. Formal deeds, on the other hand, which are formal contracts under seal, do not require consideration in order for the contract to be binding. The statute of Frauds 1677, the Law of Property (miscellaneous Provisions) Act 1989, etc required some classes of contracts to be evidenced in writing. ...read more.

Middle

At this point, the requirement of consideration becomes vague. Clearly, doing what one is already obliged to do does not constitute good consideration. Despite this, Lord Denning and the majority of the Court of Appeal claimed that she did provide good consideration in the sense that she done more than she was obliged to do by keeping her child happy. It could further mean that consideration no longer requires being of some economic value and this point is further supported by the more recent case of Edmonds v Lawson [2000]. Strictly speaking, this area in regards to whether there is a valid consideration and the distinction between an acceptable and unacceptable consideration is becoming more and more vague and may well seemed to be ultimately dependent upon the discretion of the judges. It is a general rule that performing an act which one is already legally obliged to do is not good consideration as in the cases of Collins v Godefroy [1831] and Wade v Simeon [1846] where it was held that such consideration is not good consideration. And yet in the case of Cook v Wright [1861] the court held that there was consideration and it was even argued that the claimant had provided consideration by honestly believing that they were entitled to their claim, regardless of the fact that generally consideration has to consist of at least a little economic value. Thus, this shows, at times, it is very difficult to understand how the requirement of consideration is provided. Another case to illustrate this point would be Williams v Roffrey Bros [1991], where the defendants promised a bonus to the claimants for doing what they were already under a contractual duty to do. There was no fresh consideration to support the additional promise and according to the general rule, as established in the case of Stilk v Myrick [1809], the promisor would not be under a legal duty to enforce his promise. ...read more.

Conclusion

the performance of the contract, then there was no duress, extortion or improper pressure, the court would be willing to enforce such a promise even if it means that the courts must invent consideration. Clearly this shows that ultimately, it is at the discretion of the judges to whether how any case is decided. Thus it is debatable whether there is truly a need for simple contracts to require consideration. It would seem that the difference in decisions of the current and past cases shows that the law on consideration had gradually developed over time and no longer remains quite as rigid as it originally was in the past. This could be because, when society gradually advances, ideas and principles change from time to time and the law, being flux, adapts accordingly. So, while in the past, the want of consideration could be vital as it provides evidence and defeats fraudulent claims. However, such a role, in the light of today, is of a less importance. Though, by the end of the day, the truth remains that regardless of whether what one might think regarding if the doctrine of Consideration serves any useful purpose, as it does not generally seem to give rise to problems. If the English Courts wishes to enforce a contract, they will be creative enough to find consideration. Such as in the case of Bowerman v ABTA [1996], where the parties who read ABTA's poster before contracting with travel agents were held to have given consideration for a contract with ABTA by choosing to deal with their members. Thus, English courts are peculiar in the sense that, for them, there is always consideration if one is to look hard enough. Therefore, it could be submitted that the trend of more recent developments in regards to the requirement of consideration seems to suggest that it will only be a matter of time before the doctrine of consideration is further eroded or abandoned altogether. By: Sylvia Ching-Ye Kong Date: 8 August 2004 ...read more.

The above preview is unformatted text

This student written piece of work is one of many that can be found in our AS and A Level Law of Contract section.

Found what you're looking for?

  • Start learning 29% faster today
  • 150,000+ documents available
  • Just £6.99 a month

Here's what a teacher thought of this essay

4 star(s)

An overly long and at times unfocused essay. However, the detail is largely accurate and shows a depth of understanding of consideration and associated problems.

A better approach would be to consider this issue in the context of the benefit/detriment analysis and how this does not fit in with the idea of "invented consideration".

The student may also raise: the fact that an exchange of promises may constitute consideration, the range of exceptions to basic principles (eg. the fact that consideration need not be adequate but must be more than "illusionary" / does not apply to gifts of onerous property) and the complexity of Collier v Wright "decreasing" pact and estoppel rules.

4 stars.

Marked by teacher Edward Smith 09/07/2013

Not the one? Search for your essay title...
  • Join over 1.2 million students every month
  • Accelerate your learning by 29%
  • Unlimited access from just £6.99 per month

See related essaysSee related essays

Related AS and A Level Law of Contract essays

  1. Marked by a teacher

    Stop, search and arrest

    4 star(s)

    The law states that nobody is obliged in common law to answer police questions. For instance, in Rice v Connolly (1966), Rice refused to answer questions about where he came from/where he was going, and so was arrested. The case was squashed on appeal as he was not obliged to talk.

  2. Four ways in which a contract may be discharged.

    When the work was done, it was found that it was unable to heat the house properly and emitted fumes. The cost of repair was �174. The claimant sued for the contract price less this cost of repair. (b) Partial Performance.

  1. Void and voidable Contracts.

    She ordered the sofa without consultation of any sales assistant or knowledgeable persons. This is a mistake on Karen's part as after inspection of the sofa she thought that the sofa would fit. In Smith v Hughes [1871] the defendant thought he was buying 'old oats' as opposed to new ones.

  2. Advising a Client : Contract Law

    The descriptions of circumstances in Tsakiroglou fall short of describing the effects of the event in the present case, so that a distinction may be made and Tsakiroglou discounted. Furthermore, Herne Bay Steamboat Co. v. Hutton (1903) 2 KB 683 can be distinguished because the court found that the defendant

  1. Entores ltd V. Miles Far East Corperation [1955] 2 QB 327(CA)

    Appellants' Argument chaThe defendants argued that the contract was not made in England but was made in Holland. The appellants applied for the Order 11 to be discharged and the subsequent proceedings to be set aside. cccccccccccccccc The appellants carry on arguing that as far as a contract made by

  2. Offers last forever unless expressly revoked. Critically evaluate this statement as it relates to ...

    It would appear that where the offeror has not specified how long the offer will remain open, it will lapse after a reasonable length of time has passed. Exactly how long this will depends upon whether the means of communicating the offer were fast or slow and on its subject matter.

  1. Evaluate the law of formation of contract in the context of modern methods of ...

    A major discussion point regarding whether or not the law on the formation of contract needs to be reformed due to modern communication is the postal rule. The postal rule declares that postal acceptance takes effect when the letter of acceptance is posted (in the control of the Post Office

  2. Economic Loss & Negligent Misstatements questions and answers

    However, if it is in a friend (social situation) then the D will not be held liable for the loss to C 1. D?s employee, digging a hole in the road, damages a water main. The water supply has to be cut off for two days and C?s factory has to close for that period.

  • Over 160,000 pieces
    of student written work
  • Annotated by
    experienced teachers
  • Ideas and feedback to
    improve your own work