by Thomas Mayne

Created on: July 25, 2009

The doctrine of consideration has come under increasing fire in recent times due to its somewhat intractable nature and inconsistencies, however it can be argued that much of the ill effects it had engendered in the past have been mitigated through developments of the law in the fields of economic duress and promissory estoppel. Furthermore it is suggested that consideration provides a valuable service to law in determining which promises should be enforced and which are to be regarded as gratuitous. Although the current state of the law may be described as lacking a clear governing principle due to the idiosyncrasies of these doctrines in application, it is arguable that the law's current functioning is presently acceptable in serving a number of principles which are integral to a strong law of contract such as (relative) certainty, giving effect to the intentions of the parties and providing adequate protection to both parties of the contract.

The requirement of consideration in the formation of contracts was seen to serve a number of functions in the past namely: to distinguish between binding promises and those which can be considered gratuitous, on the foundation of bargain style relationships and to protect people from binding themselves legally with promises made in a frivolous manner. However these functions were undermined by developments such as the law's lack of requirement for adequate consideration, as it can hardly be considered a bargain if a promise in enforced in return of nominal consideration such as a peppercorn or even worthless chocolate wrappers which were to be discarded in any case as per Chappell v Nestle. It could also be suggested that an alternative system based upon contractual intention rather than consideration would serve the purposes of distinguishing between enforceable and unenforceable promises as it has been stated that the question of consideration is a formality as in the use of a seal or the agreement to give a peppercorn, Vantage Navigation Cpn v Suhail and Saud Hahwan Building, serving as nothing more than evidence of an intention to form a legal relationship. However it could also be argued that contractual intention is itself an unhelpfully vague concept and would result in a lack of certainty in commercial matters. It can be said that consideration is beneficial in that it has a number of set rules which can allow parties to adequately judge when a contract has been entered into.

The main argument against consideration

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