Consideration AO3

Question 1

consideration ao3 intro

Answer 1

• centuries old law developed in a different time
• piecemeal development over time - has created inconsistencies and the law is not properly structure. elements such as promissory estoppel have cast doubt on the use of consideration
• arguably an archaic technical rule that is not useful or appropriate in the modern day - why can’t ppl do something for free but form a contract if they want to - goes against freedom of contract?
• all common law - goes against SoP and PS - judges unelected and unaccountable

Question 2

consideration - rule 1 ao3

consideration need not be adequate but must be sufficient

Answer 2

• courts are not interested in bad bargains - waste court time (floodgates/taxpayers money/alredady backlogged)
• arguably pointless rule as parties used peppercorn/pennies to get around this
• legal uncertainity around love and affection - contrasting cases of white v bluett and ward v byham - law not clear, difficult for lawyers to advise, but retains flexibility in the law to work on a case by case basis

Question 3

consideration - rule 2 ao3

past consideration is not good consideration - remcardle, exceptions

Answer 3

• did it as a gift so cannot expect payment BUT if someone makes a promise to pay - surely this should be upheld
• uncertainty around ‘implied promise of payment’ and difficult for parties to prove

Question 4

consideration - rule 4 ao3

performing a preexisting duty cannot be consideration for a new contract

Answer 4

• many exceptions to this rule - makes the law quite confusing and difficult for lawyers to predict and advise clients. uncertanty around what counts as an ‘extra element’
• but good that the court will look at this on a case by case basis and look to where employers have taken advantage of people

Question 5

consideration - rule 6 ao3

Answer 5

• this appears to be in direct conflict with the decision in foakes v beer
• arguably overwrote centuries of contract law on consideration - did the court intend or realise this? had a huge impact on the law of consideration
• courts have been reluctant to use it but they have not removed it entirely suggesting it can still be used - could have removed it if they wanted to

Question 6

consideration - conclusion ao3

Answer 6

• reform proposal - consolidate the law into an act of parliament, althought unlikely after centuries - and common law retains flexibility to change. law unlikely to change - no public appetite for change - lack political will to change this
• arguably a legal rule which is necessary and which frequently works ‘‘rank justice’’
• outgrown doctrines which lead the people to regard law and lawyers with suspicion and which neither courts nor writers understand or are able to apply consistently
• consideration came to be recognised as one of the elements of a simple contract by a more or less accidental and obscure historical evolution