It has been said that a promise is enforceable once consideration has been provided. Discuss whether this statement is too simplistic as a description of the principle of consideration.
Extracts from this document...
Introduction
"It has been said that a promise is enforceable once consideration has been provided. Discuss whether this statement is too simplistic as a description of the principle of consideration". One main feature of the English law that readily distinguishes it from the law of contract in civilian jurisdiction is the doctrine of consideration. The orthodox view is that consideration is about reciprocity or bargains. In order to enforce a promise a promise must have given something in return for the promise 1. The rules that make up the doctrine of consideration can be set out in the form of three principal rules. The first is that consideration must be sufficient but it dose not need to be adequate. This rule can be further broken down into a number of sub-rules and has proved to be particularly problematic in the case where the consideration is alleged to take the form of a promise to perform or the performance of a pre-existing duty. The second rule is that past consideration is not good consideration and the third, is that consideration must move from the promisee 2. The rule that consideration must be sufficient but it does not need to be adequate requires that something of value must be given in return for a promise but that something does not need to be an adequate return. ...read more.
Middle
On the other hand, it can be argued that it is for the parties to decide what is to constitute good consideration. Nevertheless it would appear that the courts do reserve to themselves the right to decide that a particular act alleged to amount to consideration does not in fact do so. In Thomas v Thomas 7, Patterson J stated that 'consideration means something which is of some value in the eyes of the law'. However, Lord Somervell in Chappell stated that 'a contracting party can stipulate for what consideration he chooses' 8. Consideration for a promise depends on the nature of the pre-existing obligation. The cases can divided in to three categories (i) performance of a contractual duty owed to a third party, (ii) performance of a contractual duty owed to the promisor, and (iii) performance of a duty imposed by law. For example assume that 'A' is promised a sum of money by 'B' if he, 'A', promises to perform an act that he is already obliged to perform. If the pre-existing obligation is a contractual duty owed to a third party, then 'A' will have provided consideration for 'B's promise. ...read more.
Conclusion
The final aspect of the pre-existing duty rule is the general rule that part payment of a debt is not good consideration for a promise to discharge the entire debt. The leading case on this general rule is Foakes v Beer 16. Lastly, consideration must move from the promisee and not from a third party, basically the promisee must provide the consideration. The rule does not require that the consideration move to the promisor, but moves from the promisee. Thus the rule is satisfied in the case where the promisee agrees to confer a benefit on a third party at the request of the promisor, such as the case of Bolton v Madden 18. this it the rule of the common law but it must now be read in the light of the Contracts (Right of Third Parties) Act 1999. In conclusion, it would be clear to state that a promise is enforceable once consideration has been provided as consideration it many elements combined together. There are four main machanisams which make up consideration; firstly a promise must have some economic value, secondly, consideration need not to be adequate but must be sufficient, thirdly, consideration must move from the promisee and lastly consideration must not be past. ...read more.
The above preview is unformatted text
This student written piece of work is one of many that can be found in our University Degree Contract Law section.
Found what you're looking for?
- Start learning 29% faster today
- 150,000+ documents available
- Just £6.99 a month
