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Gordley, James --- "Consideration*" [2012] ELECD 979; in Smits, M. Jan (ed), "Elgar Encyclopedia of Comparative Law, Second Edition" (Edward Elgar Publishing, 2012) 216

Book Title: Elgar Encyclopedia of Comparative Law, Second Edition

Editor(s): Smits, M. Jan

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781849804158

Section: Chapter 17

Section Title: Consideration*

Author(s): Gordley, James

Number of pages: 7

Abstract/Description:

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 formalistic 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.