Doctrine of consideration - Article Example

As a matter of positive law, the doctrine of consideration crystallized in the reign of Elizabeth I into a number of rules which are still clearly recognizable by the modern common lawyer. First, if a person received a benefit at the hands of the 11romise for which he promised to pay, the benefit was a sufficient consideration: in effect, the promise here was bought and paid for. Second, if the 11romise acted to his detriment in reliance on the promise, so that the non-fulfilment of the promise would cause him actual pecuniary loss, the detriment was a sufficient consideration. . ions that created debts; In popular etymology this was the very essence of the idea of contract, actus contra actum; With the shift towards liability based on promises, at least on the surface, it was by no means obvious that the same theory should apply, and there developed an alternative formulation of the criteria that marked off binding promises from non-binding ones; by the second half of the sixteenth century this had come to be known as 'consideration' (Ibbetson, 1999, 141).

In order to understand its nature and development, it is essential to look at it on two levels, the formal and the substantial. In formal terms, 'it is difficult to talk of any doctrine of 'consideration' before about 1560; While it seems clear that lawyers before this time had the idea that there was some additional factor that was needed to make promises binding, there was no consistent way of describing it; The sources reveal a variety of terms: consideration, causa, recompense, quid pro quo.

As the action of assumpsit became established, consideration emerged as the term that described the necessary feature. At a straightforward linguistic level, 'consideration' meant little more than 'reason' or 'motive', so that the consideration for a promise can be seen as the reason for which it was made while the standard definition of it found by the early seventeenth century underlines this: 'A cause or occasion meritorious requiring mutual recompense, in fact or in law. Substantively speaking, though, such a definition of consideration seriously misrepresents its meaning' (Ibbetson, 1999, 142)The earliest example of a case in which there is an express averment of consideration is Newman v.

Gylbert (1549). The plaintiff declared on a payment of five shillings and also averred that the defendant