One of the most notable of these critics was Professor Atiya who suggested that judges merely applied consideration on a subjective basis where they felt it is right to do so for whatever reason; a view that was heavily scorned upon by Professor Treitel who stood firmly behind the benefit/detriment definition which he professed to have a certain flexibility about it which allowed judges to expand or contract the doctrine’s scope accordingly in order to affirm or repudiate a contract depending on the facts of a case. These views were later followed by a refinement of the definition of the benefit/detriment concept to include in addition to monetary benefit, “practical-benefit” as well, as seen in William v Roffey Bros.
Note: English law not reliant on form. i.e. Steve writes his own contracts at CIS in no particular legal form… = Anyone can write a contract…
Note: Can rely on estoppel if consideration fails… It is an equitable remedy, but with less damages recoverable… L. Cairns gave birth to it in Huges v Metropolitan Raiway… but Denning helped it grow…
See McKendrick p.125 – Consideration today following the decision in COA of Roffey Bros (suggested by Russell LJ’s judgement..) is merely a vitiating factor for the courts to use to do justice where the law prevents it from doing so (see notes Hughes v Metropolitan Railway Co.) – Decision based on equity not law of consideration… Suggested development of doctrine of duress rather than doctrine of consideration… Cts should be willing to find out whether there was inteintion to create… (p.127) because intention to create.. generally = consideration.. i.e. consideration should be more closely linked with intention to create legal relations, or completely abolished (if so then new set of parameters of a contract should be laid out.. ) Regardless of this however, to protect claimants further, doctrine of duress should be refined further..
L. Goff should have changed the law of consideration in re Selectmove (95) – He was too scared.. Decided to leave it to parliament…. Decision heavily criticised…
Today, consideration will be wiped out completely by European (EU) contract law….
According to EU law (Article 2.101) Principles of European Contract Law (1998)
So today all you need is:
Offer
Acceptance
Intention to create..
Evidence: No written form needed… Contract can be proved by any means.. Even a witness testimony will suffice…
See summary on p.127…
RESEARCH:
III. The Commission on European Contract Law
4. The Commission and its work
In 1980 the Commission on European Contract Law began its work. It set itself the task of formulating general European principles for a common system of contract law. The Commission is an independent private association of legal scholars from all Member States of the European Community. It has begun by devoting itself to the law of contract, because the most important instrument of business management and planning in a market economy is the private contract. The Commission began by examining the effects and the performance of contracts. It also dealt with impairment of performance and especially breaches of contract. This part of the Principles of European Contract Law was published in English in 1995 and in French in 1997. Part Two, dealing with the [page 129] conclusion of contracts, authority of agents, substantive validity and the interpretation of contracts, was published in 1999. Work on Part Three, which covers general matters relating to the law of obligations, such as the assignment of claims and obligations, set-off and statute-barring, was begun in 1997 and is likely to continue through to the end of the year 2000.
5. The practice so far has been to distribute the material among five reporters, each of whom drafts a report and submits it to the other four. The work of this drafting group is then submitted to the whole Commission. At fourteen meetings of the first Commission and eight meetings of the second Commission, the principles have been discussed and developed. In addition, an editing group has dealt with questions of terminology and presentation of the material.
- Gaps and uncertainties are also found in national legal systems. Furthermore, some principles found in the national systems of contract law are unsuitable instruments for dealing with international contracts. Examples are the doctrines of consideration and privity of contract in common law and the current principles governing breach of contract in German law. [page 135]
