Mindy Chen-Wishart, ‘In Defence of Consideration’

Much of the scholarship against the consideration doctrine is explicitly or implicitly based on the monistic deontological view that morality and respect for individual autonomy require the enforcement of promises, whether supported by consideration or not. A different picture emerges when a richer conception of autonomy is recognised and other legitimate concerns of state action are acknowledged; namely: (i) the protection of valuable and autonomy-enhancing social forms, (ii) the need for respectful dealing, (iii) tracking the instinct of reciprocity that preserve social stability, and (iv) meeting the demands of administrability. On these criteria, transactions in the private domain should generally remain free from contract, while transactions in the market domain – where reciprocity, trust and social sanctions are not implicit – should only attract state enforcement where the parties’ dealings are marked by mutual respect. Consideration is a key marker of the boundary between the two.

Chen-Wishart, Mindy, In Defence of Consideration. Oxford University Commonwealth Law Journal, Volume 13, Number 1, September 2013 , pp. 209-238(30).

First posted 2013-10-26 11:00:28

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