Talk:Consideration

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Contents 1 To Merge Or Not To Merge 1.1 Misc. Comments 2 Clarity 3 Clarification 4 What is this... 5 A Third Theory? 6 Another merger proposal 7 "Bargained-for" consideration

[edit] To Merge Or Not To Merge

• Merge. Should this really be on a separate page? If so, why don't we have things such as Contract under English law? Then do we need Consideration under Australian law? I think that we should put these things into the same article, but under different headings - but until I get some responses, I will continue to add to the English law page. Enochlau 18:53, 16 Jun 2005 (UTC)

• Merge. I agree. The requirement of consideration has common origins, and should be dealt with generally on the same page. For variations between countries, we can create separate pages such as Consideration under English law, Consideration under Australian law etc. --Yu Ninjie 7 July 2005 10:35 (UTC)

• Merge. I don't think we should necessarily create separate pages, since the distinction wouldn't be enough to warrant them. Perhaps just separate sections outlining differences in each country would do. Enochlau 7 July 2005 15:59 (UTC)

• Merge. My reading of Consideration under English law suggests that the concept is almost identical to that in the U.S. - e.g. past performance is not consideration, nor is performance of an existing duty, or part payment of a debt, or fulfilling a public obligation. However forbearance from a right is consideration - I don't know if that's the rule in the UK, but if so, the difference is sufficiently minor to be restrained to a single article. I suggest we merge them, and let the local legal experts pick out the details afterwards. -- BD2412 ^talk July 7, 2005 16:20 (UTC)

• Merge. I concur with BD2412. --Yu Ninjie 7 July 2005 23:18 (UTC)

• Do Not Merge. As a matter of law, US and English law are, while similar, obviously and necessarily seperate. Because of this, I think that they should be addressed seperately. I believe that this should be the case for all substantive legal concepts, not just consideration.

• Do Not Merge. I am an american student in law school. I agree that the topic of 'Consideration' should be renamed to 'Consideration under American Law'. I do not agree with the suggestion to merge 'Consideration' with 'Consideration under English Law'. None of the English cases discusssed in 'Consideration under English law' were used in our Contracts course. The root of the common law may be english, but the english cases will not hold in american courts and vice versa. Also, I am sloooowwwwlllyyyy editing the wikibooks on the 1L courses for american law. If anyone has decent case briefs, I'd appreciate contributions.

I can brief a case if you want, but I don't have any pre-prepared. By the way, please sign your posts so that we know who you are. Stiles 17:18, 23 February 2006 (UTC)

• Do Not Merge. While I concur in judgment, I think that there is a serious issue with most of the law articles in this regard. Part of the problem no doubt stems for the greater number of American law students/lawyers on en.wikipedia.org than any of the others. I've noticed this tendency in procedural legal stubs that are out there. I would say that it would be worth our while to start American & add the appropriate variations as headings. Or, cite the American sources in text so that it is clear the origins. Mmmbeer 17:39, 22 July 2005 (UTC)

• Do Not Merge. I strongly disagree with merging. It would make things very confusing and unnecessary. There are tons of things to discuss in the American part, and I am sure the same thing is true for its English counterpart. Therefore, one article wouldn't be appropriate for the abundance in information. It would be clumsy, and people from England and the USA would have to go through those articles just to get what they're looking for. I know when I am studying I needs things quickly and it helps to seperate them. I do agree with Mmbeer that the American article should come first and then there be a link to the English one just as things had been before. Why? Consider the number of people that are probably looking for American consideration as opposed to English consideration. Stiles 17:18, 23 February 2006 (UTC)

• Do Not Merge. OK, first, no they shouldn't be merged, it's silly to think they should as they are totally different concepts developed over hundreds of years. Secondly, the English Law has been developed over hundreds more years than American Law. English Law came first, it is the core, and American Law is simply based on the English, therefore surely the Law of consideration should be based on the original doctrine, the English one. And before anyone asks, no I am not English, and I do not study English Law. I study Scots Law, which is a mixed system, and the only reason I'm looking this up is so that I can write in an essay on why Scots Law doesn't include such a stupid doctrine!

• Merge Both articles already cover a number of different jurisdictions; the English article mentions differences in Australia, and the American article covers all the states (and presumably Federal interpretations of common law). The differences between Imperial and American interpretations should be no greater than the diversity already covered. JCScaliger 23:08, 25 August 2006 (UTC)

• Merge, but structure the page so that differences between jurisdictions are made clear. The use of subsections can do this. See estoppel (that beast of a page) for an example; promissory estoppel is divided into sections on English, Australian and US law. --bainer (talk) 14:50, 11 September 2006 (UTC)

• Do Not Merge. However, the title for "Consideration" should definitely be renamed to 'Consideration under American Law'. For someone who is not very familiar with law, I found it confusing when I search wikipedia for "consideration". I was looking for information about "consideration" under "common law". However, Wikipedia led me directly into the "Consideration" page, which is not what I wanted. My suggestion is mainly based on the perspective of a wikipedia user. Leekaichi 13:06, 21 February 2007 (UTC)

[edit] Misc. Comments

So why does the Consideration page automatically refer to American law? Does American law underpin legal systems around the world like English Common law does? Why can't Consideration refer to our law and there can be a seperate page "Consideration under American Law"? craigTheBrit 15:05, 11 January 2006 (UTC)

• What's this useless debate about which one should come first? If you think about it, it would make sense that the American piece should come first, right? Think about it...there are about 300, 000, 000 million people in the United States, and how many in England? Also, check out just about any search engine..which search results show up first? Most of the time, they're results leading to American websites. The point here is not to argue. It's to discuss if these articles should be merged or not. So far, you've said nothing about this. Stiles 17:18, 23 February 2006 (UTC)

• I would be willing to bet that the reason Cosideration automatically refers to American Law is that the page was simply created first.Cpaliga 06:25, 5 April 2006 (UTC)

...................................

ILLUSORY PROMISES. Under the section on "illusory promises", the article states as follows: "An illusory promise, or one which the promisor actually has no obligation to keep, does not count as consideration. The promise must be real and unconditional." The statement that the promise must be "unconditional" is clearly wrong. That last quoted sentence should read as follows: "The promise must be real, and if by its terms it is made conditional upon certain events, those events must not be under the total control or discretion of the promisor."

Explanation: Contract law does not require promises to be unconditional; it only requires that the promisor not have unfettered control over whether the conditions are satisfied. The point is that conditions do not necessarily make promises non-obligatory; conditions merely place agreed-upon limits or restrictions upon promisor's obligation. Indeed, the important subject of CONDITIONS in contract law deals with precisely that--conditional promises! Conditions allow promisors the flexibility of making their committment subject to the happening of certain events which the parties regard as necessary to the transaction.

For example, the standard contracts to purchase real estate could not exist in the absense of conditional promises. In the context of these contracts, certain "events" must happen in order for the purchase to be tenable for buyer and/or seller. Both parties virtually always hedge their risks by conditioning their respective promises upon the happening of certain events. Most real estate purchase agreements condition the buyer's promise to pay the purchase price upon buyer's success in obtaining a purchase money loan; upon seller's ability to clear all money encumbrances; upon clearance by the pest control authority, and a host of other conditions. These conditions to not eliminate the obligatory nature of buyer's promise, but rather provide agreed-upon limits to the promisor's duties. Yet, significantly, these conditions to not make the contract illusory. Kenneth B. Merrill

[edit] Clarity

As someone with no legal background I found this article hard to understand. Does it mean that any contract I enter into with another person or persons requires that something must actually exchange hands? For example if I enter into a three-way contract with 2 other people we have to include something like 'the consideration for this contract is £1' and then each give the other two people a pound? --HappyDog 17:23, 6 May 2004 (UTC)

Hopefully, after almost two years since you posted that, things are now a lot more clear. To answer your question, consideration is necessary in the United States. Yes, each person would have to give up something regardless of what you're getting. Say you want a boat and your neighbor offers one, all you have to do to get the boat is to give him anything over $ 0.00. Of course, things wouldn't be that easy, but nevertheless, both parties have to give up something of value (I didn't say it has to be of monetary value). Stiles 05:13, 9 March 2006 (UTC)

As someone with a legal background (I recently graduated from law school), I found this article hard to understand. The initial definition does not, it seems to me, create a very pleasing sentence. Moreover, it seems to suggest that the "consideration" is the "bargain." Which is clearly incorrect. The consideration is the "something of value." Perhaps after I finish taking the Washington Bar Exam this week, I'll have a chance to go back and make some concrete suggestions as to how I think the language could be improved. --YLlama 18:13, 23 July 2006 (UTC)

Let me clarify to what I am objecting, because after reading the entire article, I feel I may have misrepresented my position. Under the "benefit-detriment theory," the first definition is improper. Under the "bargain theory," it would appear to be proper. Either way, it is poorly drafted and confusing. Also, I would suggest that prohibitions against "past consideration" only make sense under the "benefit-detriment theory." And so to the extent the article is taking a modern approach (outside of the explanation as to what the modern approach is), the article needs to be altered so as to consistent with that approach. --YLlama 18:20, 23 July 2006 (UTC)

Upon further thought--I know, I should be studying--I have come to the conclusion that the initial definition, to the extent that it implies "consideration" refers to the "bargain," is incorrect. Perhaps my understanding of American law is flawed, but I believe "consideration" always refers to the "something of value." The "bargain" theory reflected in the Second Restatement and in this article does not change that, but merely requires that, to be consideration, the "something of value" must be bargained for. [In fact, the Second Restatement does not use the phrase "something of value," but instead refers to "a performance or a return promise." But that's quibbling with regard to my central point.] --YLlama 18:55, 23 July 2006 (UTC)

[edit] Clarification

I agree that the article is poorly written. Unfortunately, contract law is typically a two-semester class in American law schools, and about half of the first semester is typically dedicated to the doctrine of consideration. The short answer is that there must be consideration for a contract to be binding. The "bargain theory" of consideration is that a promise that is bargained for has consideration. Your example of the one-pound payment to each person is what would be called "nominal consideration," and is not valid because it was not bargained for.

In the United States, a case directly on point is Schnell v. Nell, 17 Ind. 29, 79 Am. Dec. 453 (Indiana 1861), where Schnell promised to give each of the three beneficiaries of his wife's will $200 over a period of three years in exchange for one cent, which the document even claimed was "consideration." The Indiana Supreme Court held that consideration cannot take the form of direct exchange of money in unequal amounts.

There are times when a substitute for consideration will come into play; this substitute may be a wax seal (mostly abolished in the US, I don't know about England), reliance (I promise to sell you my Ferrari, you build a $90,000 Ferrari garage that works for nothing else, and then I break the promise; you had $90,000 of reliance on my promise and that could substitute for consideration), etc.

Maybe someday I'll rewrite the article. On a side note, I'm pointing out on the seal (device) talk page that it should discuss how a seal can be a substitute for consideration. If anyone sees this and knows the history, please fix that. Thanks. :) Ari 06:05, 3 Dec 2004 (UTC)

[edit] What is this...

Someone posted this without signing it, and I am not sure what the intended purpose was:

"in the foakes v beer case ,where beer insisted on interest being paid to her after foakes already paid th suym in installments.it is said that she is entitled to the interest , as her promise to accept the bare debt was not supported by any consideration from foakes.discuss the rule of the case and state in what situation this would not apply."

[edit] A Third Theory?

Isn't there a third theory of consideration? That is, that it exists when one party to the transaction performs an act that he or she is is not legally obligated to perform and the other party to the transaction is not legally entitled to receive. The act may be either the making of a promise or the giving of a thing of value. To meet the consideration requirements of contract, both parties to it must give consideration as defined above and the consideration given by each must have been bargained for with the other. Doesn't this definition avoid the vagaries of perceived benefits and detriments by focusing on objective elements? Anoneditor

[edit] Another merger proposal

I know they are quite conceptually distinct, but the overall world concept is not anglocentric to England and the United States. What about the PRC, Saudi Arabia, Southeast Asia? This must be merged. Elle _{vécut heureuse} ^{à jamais} (Be eudaimonic!) 03:22, 29 June 2006 (UTC)

[edit] "Bargained-for" consideration

The current article would seem to suggest that a contract with a "peppercorn" payment -- "I'll sell you this failing company for $1" -- would not be an enforceable contract, because the $1 payment would certainly not be what motivated the seller to make the sale (and therefore would not be bargained-for consideration). But there are certainly parts of the world (even parts of the common law world) where it's certainly my impression that such a contract would be upheld -- for example, see this BBC article.

It might also be appropriate to mention the fact that the consideration may not always be fully disclosed in the contract -- for example, the classic case of selling real estate for "ten dollars and other good and valuable consideration". Kickaha Ota 05:07, 25 August 2006 (UTC)