Authored By: Zara Raza
University of Northampton
Introduction:
If two parties agree to a promise and is considered fair to both parties, then should that promise to be legally unenforceable just because the technical requirements of consideration have not been met? In contract law, consideration is something of value exchanged under a legally binding contract.[1] The doctrine is viewed as a concept which prioritises fairness between parties under a contract. However, it is criticised as being too technical and rigid, functioning as a requirement blocking ‘legitimate claims’. This article argues that while consideration has a role in ensuring fairness, it creates a technical barrier, and the rigid application can produce outcomes that prioritises legal certainty over substantive fairness. The article will first examine the traditional principles and legality of consideration before analysing and critically evaluating certain cases in which it produces unfair outcomes.
Legal Framework:
The definition of consideration was established in Currie v Misa,[2] stating that consideration is something of value in the eyes of the law. A key principle from Thomas v Thomas,[3] is that consideration must be sufficient but not need be adequate, meaning that the value of consideration must not necessarily have the same value as goods. This was reaffirmed in Chappel & Co Ltd v Nestle Co Ltd,[4] where consideration could be something of small economic value such as chocolate wrappers. This demonstrates that consideration is concerned with the existence of value which is legally recognised rather than what the two parties deem fair or adequate. Consideration must also move from the promisee, found from the case of Tweddle v Atkinson.[5] The doctrine also imposes some limitations on what may constitute to valid consideration for example the general rule of past consideration not being considered valid consideration,[6] as well as part payment of debt.[7] These principles show that consideration is generally concerned with whether a legally acceptable exchange is present rather than if the exchange is substantively fair.
Case law and application:
Case law shows the flexibility and rigidity of the doctrine of consideration. In Chappell Co Ltd v Nestle Co Ltd, courts recognised that items of minimal economic value could constitute valid consideration.[8] This shows flexibility, as courts accept trivial acts as sufficient, however it shows that courts focus on the existence of consideration, rather than its fairness. Accepting consideration with little economic value may lead to unfairness as it raises the potential concerns of ‘fraud’ or ‘duress’.[9] This means that the court was merely concerned with whether the legal requirement of consideration was technically satisfied, rather than if the exchange was economically fair, highlighting that if the two parties consider the exchange fair, then that consideration is valid despite its value. This supports the argument that consideration is a technical hurdle, not a mechanism of fairness. However, it also shows the freedom that parties get in a contract as parties are allowed to decide what may have value to them.
To contrast, Foakes v Beer highlights the rigidity of consideration, where the general rule is that part payment of debt is not valid consideration.[10] This rule has been criticised because it allows creditors to go back on agreements that debtors rely on, producing unfair outcomes. So, even if parties may have agreed on what they believe is a fair agreement, this technical rule can prevent it from being enforceable. Therefore, showing that the doctrine prioritises legal rules over fairness.
In Williams v Roffey Bros,[11] the courts attempted to increase flexibility where the principle was introduced that paying more for an existing duty can be legally binding if there is a ‘practical benefit’ for the promisor and there is no duress. This is different from the legal rule in Stilk v Myrick where performing an existing duty is not considered good consideration,[12] showing a shift towards fairness and flexibility. However, it may be argued that it shows inconsistency and that traditional rules require modification to allow fairness.
Taken together, these cases show that consideration is not fully rigid, but it is not fully concerned with fairness either, instead the courts have maintained it’s technical requirements introducing some flexibility where if the application of the doctrine is deemed too strict then it would conflict with commercial practicality.
Critical Analysis:
The doctrine of consideration has been criticised for being a technical hurdle, undermining fairness and preventing legitimate claims. In Foakes v Beer,[13] part payment of debt was considered invalid consideration. This is considered unfair as it shows that the law prioritises exchange over fairness. The rule has been criticised as ‘patently absurd’, ‘inconvenient’ and ‘distasteful to the courts’.[14] The court focused on whether the debtor gave extra in return, despite both parties reaching an agreement. It creates uncertainty in commercial life, as Foakes v Beer shows that negotiated debts may not be reliable unless there is no new consideration.[15] This shows consideration is not about whether promises are fair, but rather a technical rule needing to be satisfied.
Past consideration is invalid consideration. This rule was found in Roscorla v Thomas,[16] where a promise after a contract had been made was held unenforceable because consideration for the contract had been performed. This shows that consideration is not recognised unless it is given in exchange for the promise. It is criticised for producing unfair outcomes and ignoring the practical reality of parties seeking assurances which may come after dealings. This was later reinforced in Re McArdle,[17] where the court could not consider earlier acts as consideration for a later promise to pay.
Promissory estoppel shows limitations of the doctrine of consideration. In the case of Central London Property Trust Ltd v High Tress House Ltd,[18] the court decided that a promise can be legally binding despite the lack of consideration, when one party relied on the promise. This doctrine allows courts to avoid unfair outcomes. However, this concept is limited because it is used as a ‘shield not a sword’,[19] meaning it can only be used as a defence, not as a claim.
Rather than promoting fairness, the doctrine of consideration provides certainty as it ensures agreements are binding when something of legal value has been exchanged. This is shown in Thomas v Thomas, where consideration needs to be sufficient but not adequate.[20] This means courts focus on certainty and whether value exists over fairness. The distinction between sufficiency and adequacy means courts generally don’t see if the exchange is equal in terms of economic value. Instead, they ask whether something is recognised by the law has been exchanged as valid consideration. This reflects modern day agreements, as parties can accept consideration regardless of economic value. As Lord Somervell said: ‘a contracting party can stipulate for what consideration he chooses’,[21] so parties choose to agree on consideration exchanged disregarding how fair that exchange may be. It can therefore be argued that perhaps consideration isn’t a mechanism that doesn’t achieve fairness, rather fairness was not its primary function to begin with. Its function may have been to provide certainty, evidence that something was exchanged between parties and freedom of contract to allow parties to decide what has value to them. As a result, courts can enforce agreements that may appear unequal, leading to rigid outcomes, supporting the argument that consideration is a technical requirement.
Counterargument and Justification:
Consideration still serves important functions in contract law, and it cannot be dismissed as a technical hurdle. One function is that it acts as a filter, preventing trivial or casual promises from being enforced. White v Bluett shows that trivial promises, such as promising not to complain, cannot be held as valid consideration.[22] The court found that the promise was meaningless and had no legal value, showing that courts ensure claims are legitimate and that both parties are giving sufficient consideration. This shows that it is not a technical hurdle, but a mechanism which illustrates the difference between informal promises and legal contracts.
Developments in the doctrine of consideration support views that it operates fairly. In Williams v Roffey Bros,[23] the courts showed flexibility, as they accepted that a ‘practical benefit’ can constitute valid consideration. This shows the court’s capability of evolving to reflect commercial reality, where parties often change agreements due to delays or additional costs. It suggests that consideration is not rigid, but rather it recognises business advantages and prevents unfair disputes. This highlights that the doctrine operates fairly rather than being a technical barrier.
Another reason why consideration may not be dismissed as merely a technical hurdle is though this technical rule may produce harsh outcomes, it also makes contract law more predictable. Consideration, though not always fair, gives the court a legal test rather than deciding whether an agreement was fair as it focuses more on whether there was legally sufficient consideration, providing certainty. This can again be seen in cases such as Thomas v Thomas,[24] as the law doesn’t assess whether consideration is economically enough which may seem harsh, but it prevents the courts from assessing fairness and disregarding other aspects.
Conclusion:
In conclusion, while the doctrine of consideration attempts to promote fairness, it’s primary function may not necessarily be to do, however, it also acts as a technical hurdle preventing legitimate claims. Although it acts as a filter and has provided certainty, rules such as past consideration and cases such as Foakes v Beer highlight its rigidity.[25] The technical rules provide predictability in contract law as courts do not have to decide whether every bargain was subjectively fair or not. Developments like Promissory estoppel and cases like Williams v Roffey Bros have attempted to increase flexibility and fairness,[26] however, it is still limited. Therefore, consideration can be seen as a technical hurdle producing unfair outcomes which restricts legitimate claims.
The doctrine of consideration should not be abolished entirely, it plays an extremely important role in the world of contract law as it provides certainty and distinguishes false promises from enforceable exchanges. However certain changes are needed. For example, in the rule of part payment of dept,[27] the rule should be reconsidered and should be enforceable to allow parties to negotiate between exchanges freely. This would therefore prevent creditors from enforcing debt where doing that would produce an outcome deemed unjust.
So, is consideration a necessary Safeguard or a technical barrier? It is both, but its traditional rules operate largely as a technical barrier where some agreements are prevented from being enforced even if parties have relied on them.
Bibliography:
Primary References:
Cases:
Central London Property Trust Ltd v High Trees House Ltd [1947] KB 130
Chappell & Co Ltd v Nestle Co Ltd [1960] AC 97
Combe v Combe [1951] 2 KB 215
Currie v Misa (1872) LR 10 Ex 153
Foakes v Beer (1883) LR 9 App Cas 605
Pinnels Case [1602] 5 Co. Rep. 117a
Re McArdle (1951) Ch 669 (CA)
Roscorla v Thomas (1842) 3 QB 234
Stilk v Myrick (1809) 170 ER 1168
Thomas v Thomas (1842) 2 QB 851
Tweddle v Atkinson (1861) 1 B&S 393
White v Bluett (1853) LJ Ex 36
Williams v Roffey Bros & Nicholls (Contractors) Ltd [1991] 1 QB 1
Secondary References:
Books:
Keenan Dennisnv, Smith & Keenan’s English Law (Published in 2010, 16th edition, Longman) 306 < Smith and Keenan’s English law : text and cases : Wild, Charles : Free Download, Borrow, and Streaming : Internet Archive> accessed 03 April 2026
Ewan McKendrick, Contract Law (Published 2025, 16th edition, Bloomsbury Publishing Plc) 109 < Contract Law – EBSCO > accessed 11 April 2026
Journal Article:
Merton L. Ferson, ‘The Yale Law Journal’ (1921) 2, 15 < The Rule in Foakes v. Beer on JSTOR > accessed 10 April 2026
[1] Currie v Misa (1872) LR 10 Ex 153
[2] Currie v Misa (1872) LR 10 Ex 153
[3] Thomas v Thomas (1842) 2 QB 851
[4] Chappell & Co Ltd v Nestle Co Ltd [1960] AC 97
[5] Tweddle v Atkinson (1861) 1 B&S 393
[6] Roscorla v Thomas (1842) 3 QB 234
[7] Pinnels Case [1602] 5 Co. Rep. 117a
[8] Chappell & Co Ltd v Nestle Co Ltd [1960] AC 97
[9] Dennis Keenan, Smith & Keenan’s English Law (Published in 2010, 16th edition, Longman) 306 < Smith and Keenan’s English law : text and cases : Wild, Charles : Free Download, Borrow, and Streaming : Internet Archive> accessed 03 April 2026
[10] Foakes v Beer (1883) LR 9 App Cas 605
[11] Williams v Roffey Bros & Nicholls (Contractors) Ltd [1991] 1 QB 1
[12] Stilk v Myrick (1809) 170 ER 1168
[13] Foakes v Beer (1883) LR 9 App Cas 605
[14] Merton L. Ferson, ‘The Yale Law Journal’ (1921) 2, 15 < The Rule in Foakes v. Beer on JSTOR > accessed 10 April 2026
[15] Foakes v Beer (1883) LR 9 App Cas 605
[16] Roscorla v Thomas (1842) 3 QB 234
[17] Re McArdle (1951) Ch 669 (CA)
[18] Central London Property Trust Ltd v High Trees House Ltd [1947] KB 130
[19] Combe v Combe [1951] 2 KB 215
[20] Thomas v Thomas (1842) 2 QB 851
[21] McKendrick Ewan, Contract Law (Published 2025, 16th edition, Bloomsbury Publishing Plc) 109 < Contract Law – EBSCO > accessed 11 April 2026
[22] White v Bluett (1853) LJ Ex 36
[23] Williams v Roffey Bros & Nicholls (Contractors) Ltd [1991] 1 QB 1
[24] Thomas v Thomas (1842) 2 QB 851
[25] Foakes v Beer (1883) LR 9 App Cas 605
[26] Williams v Roffey Bros & Nicholls (Contractors) Ltd [1991] 1 QB 1
[27] Foakes v Beer (1883) LR 9 App Cas 605
