RECENT DEVELOPMENTS IN THE DOCTRINE OF CONSIDERATION
| Published date | 01 January 1952 |
| Date | 01 January 1952 |
| DOI | http://doi.org/10.1111/j.1468-2230.1952.tb02105.x |
T.H
E
MODERN LAW REVIEW
Volume
15
January
1952
No.
1
RECENT DEVELOPMENTS IN
THE
DOCTRINE
OF
CONSIDERA.TION
IN
the law, as in everything else, it is a good thing to take stock
from time to time and to see how things stand. That is what it is
proposed to do in this article-to see how things stand at present
in regard to the doctrine of consideration.
It
has certainly been
much modified of late and the question is sometimes asked how
far it remains an essential element of
our
law
of
contract.
It
is
here proposed to consider, first, its place in the formation of
contract, and secondly, its place in the modification
or
discharge
of contract. Let
us
put aside the common bilateral contract-a
promise for a promise-because there is rarely any difficulty about
consideration there. Each promise is the consideration
for
the
other. Let
us
consider only the common unilateral contract-a
promise for an act-because that is where the difficulties arise.
The purpose of this article is to suggest that, both in the
formation and in the discharge
of
contract, while keeping the
doctrine’of consideration, we are tending to regard any act done
on the faith of the promise as sufficient consideration to support it,
even though the act done
is
no benefit to the promisor and no
detriment to the promisee.
I.
THE
FORMATION
OF
CONTRACT
The law for centuries has been that ari act done at the request
of
another, express
or
implied, is sufficient consideration to support
a
promise. See the notes to
Lampleigh
V.
Braithzcait
(1616)
1
Sm.L.C.
148;
Osborne
v.
Rogers,
1
Wms.Saund.
261.
Modern
developments show that the promise must be intended to create
legal relations
(Rose and
Frank
V.
Croinpton
[1923]
2
K.B.
at
pp.
288,
293);
and that a request will be implied whenever it can
be inferred that the promisor intended that his promise should
induce the other to do some act
or
forbearance on the faith of it:
Crears
v.
Hunter
(1887) 19
Q.B.D.
341.
Thus when a man
promises to give secilrity for an existing debt, on the faith of
which the creditor forbears to sue for it, the law will imply a
request for forbearance.
It
is not necessary that the creditor should
make any promise to forbear. The mere fact of forbearance is good
consideration:
Alliance Bank,
Ltd.
V.
Broom
(1864)
2
Dr.
c9:
Sm.
289;
Wigan’s
Case
[1900]
1
Ch.
387.
The only essentials are the
1
\-or..
15
1
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