Consideration
Intro
The traditional approach by Lust J in Currie v Misa explained that benefit to the person making the promise (the
promisor) or detriment to the person to whom the promise is made (the promise).
More difficult arise where the agreement is wholly executory, that exchange of promises and neither party has
yet performed. The second approach by Lord Dunedine in Dunlop Pneumatic Tyre Co Ltd v Selfridge & Co Ltd
state that English law treats the making promises capable of being consideration. This approach doesn’t fit the
traditional approach.
For this reason better to regard doctrine of consideration as simple mutuality (something being offer by each
side to it, the exchange principle) in the agreement rather than trying to analyses it strictly in term of benefit
and detriment.
Professor Atiyah stated that when the court found a sufficient reason for enforcing a promise they enforced it.
Professor Trietel stated doctrine of consideration is a complex and multifarious body of rules, such a proposition
is a negation of the existence of any applicable rules of law confesses that the doctrine of consideration is very
much an invented concept. While Professor Treitel adheres to the benefit/detriment analysis (suitably
expanded to encompass cases of ‘invented consideration’) while Professor Atiyah maintains that there are other
‘good reasons’ for the enforcement of a promise (policy approach) whose school of thought is right?
Evidently, McKendrick propounds that the “badge of enforceability” is what consideration gives.
Body
There are four fundamental principle for the good consideration.
1. Consideration must move from the promisee to promisor or third party.
2. Consideration need not be adequate but must be sufficient. The court would nor inquire into the adequacy
if consideration, as long as there is one. There should be a freedom to contract which allow the parties
themselves to whatever bargain suits them, without court interference.
i. Thomas v Thomas, the court ruled that the widow’s promise to pay 1 to keep up repairs was sufficient
consideration to make the owner’s promise binding. Patterson J in Thomas v Thomas opined that
“consideration means something which is of some value in the eyes of the law, moving from the
plaintiff”.
ii. Chappel v Nestle the court ruled that even wrappers would form part of consideration and should be
considered when calculating royalties that should be paid for a records, even thought they were not of
real worth to the defendants. It is submitted the court preference is due to the laize fair theory which
emphasizes on the freedom to contract.
iii. Professor Treitel opined that the courts are generally reluctant to interfere with bargain made by
parties.
iv. Turner and Martin argued that this is complete “nonsense because adequacy and sufficiency appears
to be the same thing” which is opined to be true in the layman sense. Thus, it appears that the statement
made in the question is true as consideration in an area whereby parties are free to negotiate and agree
upon and the court generally will not impose a certain threshold or standard to measure consideration.
Note that, whilst the exact boundary of a sufficient consideration can never be devised, the law qualified
the scope of sufficiency under the analysis of benefit and detriment. Hence it will be difficult to quantify
and ascertain what amounts to adequate consideration.
Consideration must be of economic value:
v. Ward v Byham there was a agreement to pay the woman 1 a week to ensure that the child is “well
looked after and happy” and when the payment ceased the Court of Appeal held that the mother had
undertaken to do more than her legal duty by promising to not look after the child but also to ensure
that the child is happy. Thus, there will be a consideration if a promise does something more than what
was initially agreed upon. However, it is arguable pursuant to Chappel v Nestle that consideration must
Intro
The traditional approach by Lust J in Currie v Misa explained that benefit to the person making the promise (the
promisor) or detriment to the person to whom the promise is made (the promise).
More difficult arise where the agreement is wholly executory, that exchange of promises and neither party has
yet performed. The second approach by Lord Dunedine in Dunlop Pneumatic Tyre Co Ltd v Selfridge & Co Ltd
state that English law treats the making promises capable of being consideration. This approach doesn’t fit the
traditional approach.
For this reason better to regard doctrine of consideration as simple mutuality (something being offer by each
side to it, the exchange principle) in the agreement rather than trying to analyses it strictly in term of benefit
and detriment.
Professor Atiyah stated that when the court found a sufficient reason for enforcing a promise they enforced it.
Professor Trietel stated doctrine of consideration is a complex and multifarious body of rules, such a proposition
is a negation of the existence of any applicable rules of law confesses that the doctrine of consideration is very
much an invented concept. While Professor Treitel adheres to the benefit/detriment analysis (suitably
expanded to encompass cases of ‘invented consideration’) while Professor Atiyah maintains that there are other
‘good reasons’ for the enforcement of a promise (policy approach) whose school of thought is right?
Evidently, McKendrick propounds that the “badge of enforceability” is what consideration gives.
Body
There are four fundamental principle for the good consideration.
1. Consideration must move from the promisee to promisor or third party.
2. Consideration need not be adequate but must be sufficient. The court would nor inquire into the adequacy
if consideration, as long as there is one. There should be a freedom to contract which allow the parties
themselves to whatever bargain suits them, without court interference.
i. Thomas v Thomas, the court ruled that the widow’s promise to pay 1 to keep up repairs was sufficient
consideration to make the owner’s promise binding. Patterson J in Thomas v Thomas opined that
“consideration means something which is of some value in the eyes of the law, moving from the
plaintiff”.
ii. Chappel v Nestle the court ruled that even wrappers would form part of consideration and should be
considered when calculating royalties that should be paid for a records, even thought they were not of
real worth to the defendants. It is submitted the court preference is due to the laize fair theory which
emphasizes on the freedom to contract.
iii. Professor Treitel opined that the courts are generally reluctant to interfere with bargain made by
parties.
iv. Turner and Martin argued that this is complete “nonsense because adequacy and sufficiency appears
to be the same thing” which is opined to be true in the layman sense. Thus, it appears that the statement
made in the question is true as consideration in an area whereby parties are free to negotiate and agree
upon and the court generally will not impose a certain threshold or standard to measure consideration.
Note that, whilst the exact boundary of a sufficient consideration can never be devised, the law qualified
the scope of sufficiency under the analysis of benefit and detriment. Hence it will be difficult to quantify
and ascertain what amounts to adequate consideration.
Consideration must be of economic value:
v. Ward v Byham there was a agreement to pay the woman 1 a week to ensure that the child is “well
looked after and happy” and when the payment ceased the Court of Appeal held that the mother had
undertaken to do more than her legal duty by promising to not look after the child but also to ensure
that the child is happy. Thus, there will be a consideration if a promise does something more than what
was initially agreed upon. However, it is arguable pursuant to Chappel v Nestle that consideration must
