The Revolution in Consideration Doctrine
The Revolution in Consideration Doctrine
In the latter part of the nineteenth century, the requirement of consideration became entrenched as one of the most distinctive features of the common law, especially when compared with the contract law of continental Europe. Consideration was revolutionized based on two objectives. The first was purification and unification, whereby extraneous functions of consideration doctrine were eliminated or submerged and replaced with the question of which promises should be enforced by the law. The second objective was to make the enforceable promises (or, simply, the doctrine of consideration) the basis of contract law. This two-pronged strategy worked to submerge the question of the stakes in distinguishing between gifts and contracts, between gratuitous undertakings and those supported by consideration. Prior to the classical theoretical revolution in consideration doctrine, consideration was involved in determining four central issues, none of which addressed the question of whether a promise was enforceable: the duty of care in an undertaking, the extent of liability, privity of contract, and whether an obligation could be implied.
Keywords: doctrine of consideration, contract law, common law, promises, gifts, contracts, duty of care, liability, obligation, privity
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