The Idea of Consideration

Abstract

No doctrine of the common law of contract has been longer settled or more carefully developed than consideration. Yet none has proved more intractable to theoretical justification. This article suggests that the problem is not with consideration but rather with the theories that defend or challenge it, theories not equipped to explain the doctrine because they invoke functions and purposes that do not belong to the specific kind of relation that consideration necessarily establishes. In contrast with current approaches, the article argues that consideration is not a control device that, for various policy reasons, negatively excludes certain prima facie enforceable promises. Rather, it is constitutive of a kind of interaction that is the only basis on which parties may reasonably be held to have undertaken fully contractual obligations enforceable by expectation remedies. The article sets out the main features of the promise for consideration relation; then seeks to explain the juridical meaning and role of this relation; and finally brings out the contrast with reliance.