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I have no radical proposals for the wholesale review of the doctrine of consideration. I am not persuaded that it is necessary. And great legal challenges should only be embarked upon when they are truly necessary….On balance it seems to me that in modern practice the restrictive influence of consideration has markedly receded in importance. Secondly, it seems to me that in recent times the courts have shown a readiness to hold that the rigidity of the doctrine of consideration must yield to practical justice and the needs of modern commerce.” [Lord Steyn in ‘Contract Law: Fulfilling the Reasonable Expectations of Honest Men’ (1997) 113 LQR 433, 437]

Critically evaluate this view and consider whether you are persuaded that it is necessary to review the doctrine of consideration.

   Consideration stands an idealistic approach to ensuring that a promise is fair, understood and ultimately enforceable. It returns to the basic idea of party A giving party B something as long as he promises, in example, a service. Logically it makes sense that one would not just take someone’s word for it, especially in a commercial setting, without the idea of a deposit or safeguard that action will come from the words exchanged. The conditional element of consideration that there must be a benefit to the promisor as the consideration moves from the promisee ensures this.The doctrine of consideration could be pictured as the bridge between stage one; the intent of the parties, the actual promise or contract set out and the benefit received and stage two; the action and consequences. It is when the benefit received creates uncertainty or the intent of parties is not clear when that bridge is not complete and consideration becomes a claim in court.

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   Through case law it is quite transparent that the doctrine of consideration is not always one of easy application to circumstances in court. The 1809 case of Stilk v. Myrick explored an element of consideration; performance of a contractual duty owed to the promisor, and made it clear that it was not good consideration. This precedent was set, established and exercised for the next 147 years until it was challenged in Ward v. Byham in 1956. Lord Denning in Ward v. Byham went against the general rule and claimed that performance of an existing contractual duty did provide sufficient consideration. The doctrine ...

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