DOCTRINE OF CONSIDERATION & ENGLISH LAW

English Law would lose nothing if the doctrine of consideration were to be abolished because recognition of the doctrine is a mere Encumbrance

Declaration

This dissertation on the hypothesis was completed wholly by myself Aaron Munaiwa The dissertation has been fully referenced and no plagiarism has taken place. I have not submitted this dissertation to any other institution for any other reason.

Acknowledgements

I would like to express my gratitude and thanks to God the almighty for gifting the knowledge and perseverance in order to complete this dissertation. I would take this opportunity to thank my research supervisor, family and friends for their support and guidance without which this research would not have been possible.

Table of Contents

Declaration2

Acknowledgements3

Chapter 1: Objects

Role of consideration in contract formation

7

Hypothesis8

Aims & Objectives8

Chapter 2: Consideration and Privacy of contract11

Chapter 3: What is wrong with the doctrine of consideration's application? …………………...15

Chapter 4: Advantages and disadvantages of consideration18

Chapter 5: Exceptions to consideration20

Chapter 6: Conclusion28

Bibliography33

Chapter 1: Objects

Introduction

The role of consideration in contract formation, since 1809 the common la has clearly provided that a promise by a party to perform an act that he or she is already legally bound to perform is not good consideration. Accordingly a promise received in exchange is not enforceable. This is so whether the promise ould have the effect of creating a new contract or modifring the terms of an existing contract. The rule has from time to time been the subject of judicial criticism but nevertheless operated with full vigor until 1991. Hitherto. (except in unilateral contract situations) consideration subsisted in the promises made by the parties at the instant of exchange rendering the promises thenceforth mutually enforceable. The contract or the modified contract effectively existed from that time, unconcerned with what the parties hoped to gain from the exchange or what each in fact gained. The English Court of Appeal decision in Williams v. Roffey Bros & Nicholls Ltd has the potential to change the la as settled. This dissertation is concerned with the consequences of the decision in the context of promises intended to modify the terms of existing contracts.

In Williams v. Ro/jèy the successful promisee gave the promisor no more than an understanding that he would continue to attempt to perform his undertaking under a prior contract. The Court held that the practical benefit' that accrued to the promisor from the repetition of the previous promise was sufficient consideration to make the promise of increased payment enforceable. The second promise was made outside the bargaining process and the potential for practical benefit' was neither solicited nor offered. The fact that there would be a practical benefit' was a deduction made b the Court as a result of questioning counsel for the defendant during the argument of the appeal.

The dissertation examines the history of the doctrine of consideration, its incidents, which are said to enable consideration to moderate bargains, and how each is potentially rendered redundant by the decision. As a result of the decision, the role of the court has ...