Gordley, James --- "Consideration" [2006] ELECD 167; in Smits, M. Jan (ed), "Elgar Encyclopedia of Comparative Law" (Edward Elgar Publishing, 2006)

Book Title: Elgar Encyclopedia of Comparative Law

Editor(s): Smits, M. Jan

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781845420130

Section: Chapter 16

Section Title: Consideration

Author(s): Gordley, James

Number of pages: 7

Extract:

16 Consideration*
James Gordley


1 Introduction
The doctrine of consideration is peculiar to common law jurisdictions. It is
the result of (1) a pragmatic attempt by judges before the 19th century to
set limits to enforcement of a promise by a writ of assumpsit; (2) a formal-
istic attempt in the 19th and early 20th century to define consideration; and
(3) a pragmatic attempt by judges to give relief when a contract was unfair,
even though these same judges did not admit that a court should consider
the fairness of a contract. The result is what one might expect: a jerry-built
amalgam of pre-19th-century concern with the limits of writs, formalistic
efforts to define pragmatically forged concepts, and efforts to police the
fairness of a contract with a tool never designed for that purpose.

2 Assumpsit
For centuries, the common lawyers did not organize their law in terms of
categories such as contract or tort but rather in terms of writs or forms of
action traditionally recognized by the royal courts. It was only in the 19th
century that the common lawyers tried to formulate a systematic law of
contract. They did so, however, while claiming that they were merely for-
malizing the rules that English courts had been following implicitly.
Traditionally, a disappointed promisee could sue in one of two forms of
action: covenant or assumpsit. He could recover in covenant only if the
promise had been made under seal, a formality originally performed by
making ...