Project Outline: Should the English legal system change its contract law doctrine of consideration to promote positive economic and social relationships?

Supervised By: Dr. Irina Sakharova, Durham Law School
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Should the English legal system change its contract law doctrine of consideration to promote positive economic and social relationships?

Supervised By: Dr. Irina Sakharova, Durham Law School

Consideration is a key required factor for most contracts in order for them to be properly formed and legally enforceable. Without it, even if a contract has the other required factors of contract creation including offer, acceptance, certainty, and intention to create legal relations, it is not enforceable, with some exceptions. Consideration is the requirement that an exchange must occur while forming contracts; something cannot be given for nothing and then legally enforced.

One objective of the research will be to initially catalogue the differences in the doctrine of consideration between the English system and the American, French, and German systems. The doctrine of consideration also exists in the United States. Both the English and American systems are common law systems, which means that the law is based on both cases and acts and primarily judge-made. However, the French and German systems are civil systems, which are based on legal codes. The name of consideration does not exist under these systems, but the concept exists of something cannot be given for nothing while still being legally enforceable. Thus, the research will involve reading the legal codes of France and Germany, cases and Acts from the United States and England, and law journal articles analysing the comparisons. This focus on one particular aspect of contract formation, which is only one of many that have to be fulfilled in order to have a valid contract, will ensure that the scope of research is not too broad.

The research will primarily look at forms consideration contract law could take in order to facilitate positive social norms and relationships. The broad goal of contract law is to facilitate and regulate contracting within our society; however, there are a variety of perspectives within the field as to what this should ideally look like. Some scholars argue that autonomy to contract should be prioritized without qualification and most agreements should be legally enforceable. However, other leading scholars, such as Mindy Chen Wishart, argue that consideration in its current state has other benefits, particularly in regards to encouraging certain social norms and behaviours that are inherently human and beneficial. For example, she argues that the unenforceability of promises without consideration broadly benefits society through affirming the natural human nature of trust and solidarity within relationships. The existence of consideration itself is not without controversy; Lord Goff famously described it as ‘unnecessary’ in White v Jones. Nevertheless, this research will focus on how contract law could potentially be used to enforce positive social norms and social welfare, while still preserving autonomy. This is instead of considering the multitude of ways the various established goals of contract law could be achieved in order to narrow the scope of the research to be more appropriate for a 6 week timespan.

Lastly, to make the project in this vast field focused enough to fit six weeks, the bulk of the research and final output of a paper will be focused on only a few aspects of the doctrine of consideration. The initial research phase will be broader and aim to understand the key differences between the legal systems I have selected to study. Afterwards, I will pick certain aspects of each regime to compare for optimization of social norms and read scholarly opinion articles on. For example, one key article I read during my planning and research to understand the scope of this doctrine was a bidirectional comparison between the English and German legal system. It focused for a significant section on how the German legal system has a different system of categorizing gifts from bargains, or voluntary exchange agreements. Rather than making these categories a dichotomy, the German system has a category called ‘mixed gifts’ which is when an exchange is ‘partly gratuitous and partly reciprocal’. The author compared what he thought was incorrect about this scheme and what the German system could benefit from the English regime. This kind of analysis is exactly the kind of output that is the goal of the project.

References:

Chen-Wishart M, 'Contract Law' (2022) (OUP)

Chen-Wishart M, 'In Defence of Consideration' (2013) 13 Oxford U Commw LJ 209

Ungerer J, 'A BIDIRECTIONAL ANGLO-GERMAN COMPARISON OF CONSIDERATION IN CONTRACT LAW' (2023) 72 International & Comparative Law Quarterly 251

White v Jones [1995] 2 AC 207

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