WANT OF CONSIDERATION
| DOI | http://doi.org/10.1111/j.1468-2230.1953.tb02134.x |
| Published date | 01 October 1953 |
| Date | 01 October 1953 |
WANT
OF CONSIDERATION
THL
dbtinguished lawyers who signed the Law Revision
Com-
mittee’s
famous
Sixth
Interim
Report would doubtless have felt
surprise
at any suggestion that their recommendations as
to
the
doctrine
of consideration would come
into
effect
“
without recourse
to
kgiehtion
at all.” Indeed, that part
of
the
report
which
deals
with
consideration
begins
:
cc
No
doctrine
of
the
common law
of
England
is
more firmly established at the present day than the
doctrine of consideration.” Lord Wright, the chairmmn of the
committee, elsewhem
stated
the law in even more emphatic terms,’
and more recently
Denning
L.J. has said that the doctrine is
(‘
too
firmly ked to be ovwthmwn by
a
side-wind.”s However, the
last-mentioned learned judge has in a recent articles blown very
hard upon consideration and has suggested that the law
is
develop
ing
in
such
a
way
as
to
lead
to
fundamental changes
in
the rule.
The
argument
is
supported by an examination
of
some recent
decisions
which
in
the learned author’s view have “much modi-
fied
”
the
old law. In
the
present article
it
is proposed
to
analyse
Denning
L.J.’s
argument and to submit with all respect, that
the doctrine
of
consideration has not changed one whit in
recent years, and that what Lord Mansfield
was
too late to achieve
in the eighteenth century cannot
be
achieved in the twentieth
century otherwise than by legislation.
It
is not here proposed to
=-argue the merits of the doctrine, although its usefulness
as
a
negative test
of
the existence
of
a contractual obligation
is
familiar
to all practising lawyers. The points
for
and against
it
are well
known‘ and only extreme conservatives would not concede that it
is at least
in
need
of
amendment. What is
so
disturbing
to
the
ordinary lawyer, bred
in
the doctrine
of
the authority
of
precedent,
is the suggestion that it is still open to the courts to emasculate
if
not destroy
a
firmly rooted principle
of
the common law.
If
this
suggestion
achieves the results aimed at,
a
much
criticised
doctrine
will have been reformed at the cost of incalculable damage
to
a
far
more important principle, that of
stare
decisis.
In
the article
now
under discussion Denning L.J. is
con-
cerned only with the unilateral contract-a promise for
an
act-
and he contends that it is the present tendency to regard any act
*’
“he necessity
of
coneidermtion
is
established
bz
muthorities
which
not even the
House
of
Lords
could
distinguish or disregmrd;
In
Combe
v.
Combe
[19511
9
K.B.
316,
at
p.
%M.
49
Harv.L.R.
rt p.
1‘226.
’’
hnt developments in- the doctrine of‘consideration
”
by Denning
L.J.
;
16
M.L.R.
1.
Bee,
e.g.,
”
“he
Reform
of
Consideration
”
by C.
J.
Hsmson,
64
L.Q.B.
888;
Lord
Wright,
loc.
Git.;
1
M.L.R. 97;
L.
R.
Committee, Sixth Interim
Report.
441
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