CONSIDERATION: A POINTLESS DOCTRINE?

Consideration is one of the fundamental elements that must be met in the formation of a contract. The other elements include the presence of an offer, acceptance, and intention to create legal relations. Consideration is defined as consisting of some right or benefit accruing to one party or some detriment or forbearance undertaken by the other party as stated in Currie v Misa. The absence of consideration leads to the contract not being legally binding. Thus, on the surface consideration appears to attempt to ensure that the contract in place is equitable and neither party is taken advantage of.

However, this appears to not be the case when examining two of the rules of consideration. Consideration must be sufficient but need not be adequate. The case of White v Bluett illustrated the sufficiency test as it was held there was no consideration where there was a promise in place for one party to pay money if the other party did not bore him. The boredom was not seen as being measurable. However, the adequacy test is the one that illustrates the potentially futile nature of consideration. Indeed, consideration need not be adequate and as famously cited the consideration could be a peppercorn as stated in Chappell & Co Ltd v Nestle Co Ltd. In this case the consideration was wrappers. 

Although the conclusion of this case can be argued that consideration is a pointless doctrine as it can easily be followed. However, on the other hand the rule that consideration need not be adequate can be viewed in a positive light as it ensures a party’s autonomy, which is a fundamental and important element to insure the freedom of a contract. This can be separated into party freedom and term freedom, defined respectively as the freedom to enter into a contract with anyone you want and with whatever terms one wishes. The latter is ensured by the rule of consideration needing to not be adequate. It therefore appears that consideration is not a pointless doctrine, and that the courts have established a good balance between maintaining consideration as a principle, but also ensuring the autonomy of the parties. 

 

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