The Concept Of Consideration Notes
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Should the consideration doctrine remain?
Justifications • Chen Wishart: Evidence of existence and seriousness of undertaking o Consideration = evidentiary role, is "valuable signal" to show undertaking o Looks at which undertakings are enforceable rather than who can enforce o Problems: McKendrick: existence of deeds mean that no consideration required at all sometimes • But Me: But in such cases, we have the written deed which provides evidence of the promise made and what the promise was for. o Consideration serves an evidentiary purpose without which oral contracts McKendrick: Consideration need not be adequate e.g. £1 for Football Club (cos you're actually buying the debt they're in) • £1 doesn't really reflect "seriousness of undertaking". • BUT it is a clear indication that the contract is meant to be enforceable - often used as a lawyer device, parties may not even know about it and it may not be paid o so yes it is artificial, but has a clear evidential value - some other declaration would have to get involved otherwise. 3. Couldn't we just infer this from the surrounding circumstances?
• Possibly, but not as quick and easy for the court to see o Equally, meant to be an objective concept, and we may very well get involved in a debate of the subjective views of the parties about whether it was enforceable or not • Chen Wishart: Intuitive justice of exchange o Enforceability of bargain reflects idea of reciprocity which reflects the norm between equals in social arrangements and symbolises difference between trading and talking o Stevens: Force behind consideration = maxim that "equity will not assist the volunteer" Deed much easier to be set aside as a "mistake" rather than a contract with good consideration • Chen Wishart: Explains measure of relief o Bargain model explains extent of liability for breach of contract Expectation measure gives promise value of performed contract because he has given the agreed equivalence of that performance. • Raz: marks boundary of appropriate legal involvement o Contract law facilitates institution We can facilitate agreements between friends owing to trust and social sanctions Much harder to do that with strangers • Use of contract law viz. consideration helps to bridge that gap of trust o Collins: consideration draws line between public enforceable transactions and private unenforceable agreements. • Collins: distinction between gift and contract
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