THE DOCTRINE OF CONSIDERATION CAUSES

The doctrine of consideration causes many difficuties” Using relevant legal authority and arguments, discuss whether you believe this statement is true

The doctrine of consideration causes many difficuties” Using relevant legal authority and arguments, discuss whether you believe this statement is true

The doctrine of concern, with its focus upon exchange, and its general rejection of 'more for the same', appears inadequate for the up to date natural natural environment in which flexible rewards may reflect the employer's concern that the importance of one-by-one employees to an enterprise may not remain unchanging and may alter as the commercial context in which their work is presented fluctuates.

Although versions of the academic doctrine have workout an important influence in English paid work regulation, there now appears to be a obvious disinclination to use the doctrine as a problem-solving technique. This is especially so in relative to the variety vases as well as those worried with the enforcement of apparently gratuitous advantages in prescribed principles, such as equal possibilities policies. It will be contended that the academic doctrine is either dropping into desuetude or that it has been considerably revised. Introduction The fundamental proposition of English law that not every promise is legally enforceable requires the courts to establish problem-solving mechanisms to distinguish enforceable from non-enforceable obligations. This task is demanded of courts and tribunals in employment disputes as much as it is of courts in the commercial context. The classical common law has, of course, been dominated by the theory of bargain, which is the predominant explanation of contractual liability, albeit one that is supplemented by intention to create legal relations. Such is the command of the doctrine of consideration over legal thought that the courts have sometimes been prepared to fashion consideration where it is ostensibly absent rather than question its necessity. Exchange thus comprises the terra cognita of contractual obligations. (H Collins 2001 PP. 55)

Sanction applies. However, in employment law, after the decision in Taylor v Secretary of State for Scotland, 3 this classical distinction is coming under strain. It will be argued that English employment law has developed to a condition in which consideration is not consistently considered to be the dominant evidence of contractual intent. The purpose of the present article is to examine the state of English employment law jurisprudence to reveal the extent to which the courts are developing alternative explanations of the contract of employment. Of particular interest will be the question of enforcing post formation benefits, such as a pay rise where duties remain unaltered, where the issue of enforcement must confront the traditional prohibition on enforcing promises of more for the same.5 In many cases, as we shall see below, the absence of consideration appears to be either unnoticed or ignored. These latter decisions in particular raise the intriguing possibility that in employment law the classical doctrine of consideration is falling into desuetude and no longer convincingly explains the distinction between non-enforceable from enforceable ...