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The Concept Of Consideration Notes

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Should the consideration doctrine remain?
Justifications

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Chen Wishart: Evidence of existence and seriousness of undertaking Consideration = evidentiary role, is "valuable signal" to show undertaking Looks at which undertakings are enforceable rather than who can enforce Problems:
? McKendrick: existence of deeds mean that no consideration required at all sometimes

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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. PS1 for Football Club (cos you're actually buying the debt they're in)

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PS1 doesn't really reflect "seriousness of undertaking".

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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?

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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 Enforceability of bargain reflects idea of reciprocity which reflects the norm between equals in social arrangements and symbolises difference between trading and talking 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 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 Contract law facilitates institution
? We can facilitate agreements between friends owing to trust and social sanctions
? Much harder to do that with strangers

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Use of contract law viz. consideration helps to bridge that gap of trust Collins: consideration draws line between public enforceable transactions and private unenforceable agreements. Collins: distinction between gift and contract

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