[1] (sixth edition,Oxford 2014) pp 146 Consideration does

1 Jill Poole, Textbook on Contract Law (13th
edition, Oxford) p

2
Currie v. Misa: 1875 AER 686

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3
McKendrick, Contract Law (sixth edition,Oxford 2014) p 144

4https://digitalcommons.law.lsu.edu/cgi/viewcontent.cgi?referer=https://www.google.co.uk/&httpsredir=1&article=4539&context=lalrev

 

5
Paul Richards, Law of Contract (sixth edition,2004) p 51

6
Paul Richards, Law of Contract (sixth edition,2004) p 51

7
Jill Poole, Textbook on Contract Law (13th edition, Oxford) p 124

8
McKendrick, Contract Law (sixth edition,Oxford 2014) pp
146

Consideration does not have a
set definition within the British legal system and therefore courts have
obtained some level of freedom to enforce any promise. There is a question to
be asked “Can a fully capable person make a binding promise to another to
give or do something for nothing?’,’The answer, given at once, is also short: For
countries within the sphere of influence of the English common law the standard
answer would be no, almost never. For the more civilized countries of western
Europe the standard answer would be yes, since they have never suffered from
the blight that afflicts countries adhering to the English common law-the
requirement of bargain consideration.’ 4 In the case of Currie v Misa (1875)
consideration has been definied as “A valuable consideration in the sense of
the law, may consist either in some right, interest, profit or benefit accruing
to one party or some forbearance, detriment, loss or responsibility given,
suffered or undertaken by the other. “5 Such a definition of consideration states
that the one important requiremenet is ‘ something of a value’ to be given.
There is also more modern approach to the concept of consideration summed up by
Sir Frederick Pollock, 1910 who states that 
“An act or forbearance of one party, or the promise thereof, is the
price for which the promise of the other is bought, and the promise thus given
for value is enforcebale”. Such a definition has been adopted by Lord Dunedin
in the case of;. Dunlop Pneumatic Tyre Co. Ltd v Selfridge & Co Ltd.1950
AC 847 and is regarded as being more representative of the doctrine of
consideration in the modern commercial contract than the 19th
century concept of benefit and detriment.6 In Currie v Misa (1875) p162, Lush J stated
that “valuable consideration, in the sense of the law, may consist either in
some right, interest, profit or benefit accruing to the one party.  “The act or promise is said to constitute the
consideration may be both a detriment to the promisor and a corresponding
benefit to the promise, it is not necessary to have both benefit and detriment as
it was made clear by Lush J.7  The
issue with the definition provided by Lush J, specifically with the phrase “in
the sense of the law” is that the law will decide whether consideration has
been supplied. 8 Also a further issue to be discussed is that
some definitions state that consideration has to be seen as satisfactory but in
the eyes of the law where others focus more on what individuals define as satisfactory/valuable
consideration. Therefore consideration should no longer be regarded as a
necessary element in a legal contract.

Defining consideration:  

 

Consideration is an important element in formation of
a legally binding contract. To decide whether there was a consideration or not
there needs to be a demonstration by proof of a benefit and/or a detriment. However,
in modern contract law the analysis of benefit/ detriment has been substituted
with the concept of consideration. Often the court makes the final decision regarding
the sufficiency of consideration, what tends to give considerable weight to the
preferences of the parties to the contract when deciding whether or not
something of value has been given or promised3  Therefore consideration should no longer be
regarded as a necessary element in a legal contract.”

Identification of consideration:

 

Throughout
19th century, in the modern development of contract law the formation of
contract was based on the will of the parties. Therefore, the test for
identifying those contracts beyond the reach of the law was framed in terms of
whether the parties intended legal relations or intended to be bound by law.1 In the case of Currie v Misa, consideration
has been definied as “A valuable consideration…. may consist either in
some right, interest, profit or benefit accruing to one party or some
forbearance, detriment, loss or responsibility given, suffered or undertaken by
the other. “2These
terms involve an exchange of something for something that has to be sufficient
and doesn’t have to be adequate.The following is exploring the concept of
consideration, evaluating each requirement and its significance in formation of
lawful contract.

 

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