Consideration is not an actual contract doctrine. It is a pre-requisite to the formation of a valid contract, along with offer, acceptance, and terms. As a result, consideration cannot deny the enforceability of an agreement. Rather, the absence of consideration means that no agreement existed in the first place.
So what is consideration? It's actually a very old concept that has decreasing relevance today. However, as it is traditionally understood, there has to be some sort of "legal detriment" or "bargained-for exhange" between an offeror and an offeree.
Why do the courts look for this kind of legal detriment? The courts apply these tests to differentiate between legally enforceable contracts and mere gifts, which are not enforceable agreements.
However, even in cases where consideration fails, the courts can apply other principles in order to fashion remedies that are fair, such as promissory estoppel, quantum meruit, or restitution damages. Look these up on wikipedia if you'd like more information.
2007-12-30 18:57:58
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answer #1
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answered by J.R.H. 2
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Consideration is the keystone of the english law of contract. Without it, even if it is only nominal or merely a chocolate wrapper, there can be no contract. If there is no contract, there can have been no breach. In simple, traditional terms consideration is provided when the promisee suffers a detriment or the promisor gains a benefit, making a binding contract. There must be some kind of exchange between
the parties. Without consideration, there is only a gratuitous promise and gratuitous promises are unenforceable in contract law (without a deed).
The difficulty with consideration is that people should be held to their contractual obligations and should not be able to use consideration, or a lack of it, as a way to circumvent a breach of contract. There is no good reason why a defaulting party should be given the opportunity to benefit from its own misdemeanour. It is all very well to try and subsume consideration under intention to create legal relations,
but an essential part of that latter doctrine is that the courts will hold the parties to the contract they intended to create. If they created it, then they must be taken to have intended to perform. if they do not perform, they should be held to account, otherwise there is simply no point in the law of contract at all. The law, in my view, has not taken a high enough view of contractual obligations. Practical benefit is like the emperor’s new clothes – it is illusory and it leaves that which it was meant to protect naked and open to ridicule.
I would think that the doctrine of good faith is a better alternative to consideration.
2008-01-01 11:52:43
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answer #2
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answered by stephen.oneill 4
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there has to be consideration before you can have a binding contract. An "agreement " is as it says something agreed between two or more people. I can agre with my neighbour to close her gate at night but that would not be enforceable in law because it is not a contract (no consideration) However were we to say my neighbour gave me £30 on the understanding i close her gate for the following 7 days, once i accepted the £30 then it would be a contract.
2007-12-31 12:03:45
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answer #3
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answered by Anonymous
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not at all. consideration is simply a fail safe device. dont forget that an enforcement can also backfire!! its not just a one way beast. IE: puting a hole in a sinking ship to let the weter out!! will also result in letting water in. etc etc.
2007-12-31 08:55:43
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answer #4
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answered by Anonymous
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No consideration no contract. The consideration need not be adequate and it can not be for something done in the past
2007-12-31 06:51:37
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answer #5
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answered by Scouse 7
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