Consideration in English contract law
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The paper deals with the doctrine of consideration by examining the main aspects and the known rules in which it is divided. The Author refers that sceptics might suggest that consideration could be abolished because it should be sufficient that the parties had an intent to create legal relations. Relatedly, it is said that consideration is merely evidence of such an intent. However, both points are not accepted in England. The traditional view is that an element of bargain, a requested detriment, or requested conferring of a benefit, is an additional requirement, which requires concrete proof and without which a claim for breach of a promise is invalid (unless the promise was made by deed). In short, a gratuitous promise, even one which the parties expressly declare to be legally binding, is a legal nullity unless the promise is formalised as a deed. The giving of nominal consideration dispenses with a deed. But such nominal consideration involves invocation by the parties of the general rule of consideration. That rule can be expressed as the principle that only bargains (as distinct from donative and gratuitous promises) are legally enforceable, unless the special formal instrument of a deed has been used.
keywordsEnglish contract law, bargain, covenant, deed, remedy, promise, estoppel, common law, equity.Biografia dell'autoreProfessor Emeritus of Law University of Cambridge – Clare College |
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