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COMMON LAW OBSOLETE OR RELATIVE TODAY

Reyte On Publishing
'As an essential requirement for contract at common law, consideration is an obsolete concept; it

should be done away with completely.'-critically analyze this statement-1000 words

Common law comes from the English law and is the foundation of law in the U.S. and several

other English speaking countries. The origins of common law are from the 12 th Century and

before. Henry II began to set up the court system and the judges of that day had the laws

published in the records.

Common law was defined by the judges or judge-made law. As the judges wrote down the

records of completed case law that developed over centuries. These became the precedents on

which much law is based today as defined in the Duhaime dictionary (1999).

By precedents, the previous law principles will have authority over similar cases more recent. Or

at least represent a starting point in deciding cases where there are similarities. This allows the

ongoing laws to be in harmony with past legislation.

Brantly (1912 p.86) Contract law in the 1800s required what is known as “consideration” which

is the "right, interest, profit or benefit accruing to the one party, or some forbearance, detriment,

loss or responsibility given, suffered or undertaken by the other". Therefore both parties had to

offer something to the other, in order to make contract law binding.

Consideration was seen as one of the terms that made a contract valid. It could refer to any item

that had value for exchange in a contract. Traditionally it was an expression of enforcing the

terms by giving a tangible promise in addition to your word in a contract arrangement. If you had

no consideration, you were not able to form a contract. A simple example would be my son

promising to wash my car after which I promise to pay him $10 for washing my car.
Lisa (2001) discussed four general guidelines under consideration that make it legitimate.

1. First is that the consideration must be valuable.

2. Secondly, the consideration must be sufficient, but it does not need to be adequate.

3. Third condition is that the consideration must move from the promisee - the person to whom

the promise is made.

4. Fourth, the consideration may be executory or executed, but past consideration cannot be

used to support a promise.

Determining what is valuable in the form of consideration is not simply defined in the courts.

The boundaries for setting consideration are rooted in these four guidelines. Lisa (2001), in an

example of a case between a Father and son, we can come to understand what value is and what

it is not. The inherent love of an individual to another person or ideal is not enforceable in a

contract. The case of White V Bluett discusses a son’s promise not to complain to his father

about how he distributed the inheritance of property to the siblings. Lisa (2001) explains further

that the father in turn promised not to sue his son for a debt owed. The promise of the son was

declared not sufficient consideration by Judge Pollock, as the son had no legal right to complain.

Furthermore, the Judge cited that the son did not promise anything of value for the promise of his

father not to sue him.

In declaring consideration obsolete today based on this first premise, the Judge’s decision can be

argued.

The father did in fact receive consideration in that the son’s agreement to not complain is in fact

arguably valuable.

Because there is not written law that the son cannot complain to his father before his offering this

consideration, it can be said that his consent to not complain was of value.
There is a more recent case Pitt V. PHH Asset Management Ltd. Where a house that where a bid

was accepted by PHH and payment promised Pitt. Only to be overbid by a third party to which

PHH sold the home. Mr. Pitt had agreed to purchase the home as his consideration and not file an

injunction, PHH had agreed to sell the home and lockout other bidders, this being PHH

consideration. Mr. Pitt sued PHH for reneging on that promise. The judge agreed that PHH had

broken the lockout agreement.

Lisa (2001) describes the second guideline is demonstrated by the following case of Chappell

and Co. V Nestle. Nestle exchanged a record for $6 and three paper wrappers from the candy

bars. Later when these items were presented in exchange for the gramophone record, Nestle did

not accept the terms. Though the wrappers had no monetary value, they were valid consideration

since Nestle agreed it to be so. Quantifiable consideration was adequate according to terms.

The third guideline is shown by the following case of Tweedle V Atkinson. Being that the

consideration must transfer from the person who receives a promise. Lisa (2001) discusses how

the party must give up their consideration in order for the contract to be validated. Mr. Tweedle

Jr. married Ms. Guy. The fathers of both parties agreed to terms as follows Mr. Tweedle Sr.

promised one hundred pounds to his son and Mr. Guy promised to give 200 pounds to his

daughter. Mr. Guy died and did not transfer his consideration to his daughter. The executor

would not pay the money because the contract was not completed.

In subsequent years the factor of consideration was again made obsolete by another ruling. This

time by Parliament in 1999 through the Contract Rights of Third Parties Act.
The fourth guideline of consideration is that past consideration can not be part of the contract.

Roscola V Thomas is explained in this way, a plaintiff agrees to buy a horse in exchange money.

Lisa (2001) explains that after this contract was completed the defendant agreed he would give a

guarantee to the health of the animal. The animal was unhealthy and the plaintiff filed suit. In

this instance the court ruled on the defendant’s behalf from the terms of the first contract. The

plaintiff did not offer consideration for the second contract; therefore the past or first contract

where there was an exchange of promises was upheld.

Lisa (2001) states the “statement consideration is an obsolete concept and should be done away

with completely”, is to some extent valid. From the standpoint that some of the cases where

consideration was thought to be inadequate, when viewed from a different point of view were

actually proven substantive. As described in the cases presented.

Civil Law originated in Roman law and is indoctrinated in countries of Europe, Latin America,

Scotland, Louisiana in the U.S. and Quebec Canada. There is a hierarchical structure of laws or

rules and strict codes that must be adhered to. There is a judge that hands down decisions based

on these rules and no jury. Precedent is not required to make decisions under Civil Law. Also in

direct opposition to its counterpart Common Law, Civil Law assumes the Defendant guilty until

proven innocent defined by BusinessDictionary.com (2009).
Bibliography

Sprod, T 1999, 'Philosophy, young people and well-being', Youth Studies Australia, vol.18, no. 2,
pp. 12-16, viewed 28 October 2004, <http://www.acys.utas.edu.au/ysa/articles/index.html>.

Brantly, W. T. 1912. ‘Law of contract’. .m. curlander. pp. 86.

BusinessDictionary.com 2009. ‘Civil law definition’. viewed February 4, 2009,
<http://www.businessdictionary.com/definition/civil-law.html>

Duhaime.org. 2009. ‘Legal definition of common law’. viewed February 4, 2009,
<http://www.duhaime.org/LegalDictionary/C/CommonLaw.aspx>

Lisa, B. 2001. ‘Consideration considered. how english law identifies valid contracts’. viewed
February 4,
2009, <http://review.society.cz/index.php?option=com_content&task=view&id=13&Itemid=2>

Mo, J. 2003. ‘International commerce law’. 3rd Ed.