ABSTRACT
This paper examines the evolution of the enforceability of contracts across common law jurisdictions. It traces the shift from an objective approach, which focuses on the outward expressions of agreement between parties, prevalent in the early to mid-20th century, to a more subjective and equitable approach employed in the late 20th century, which considers the fairness and intentions behind the agreements. In the last few decades, the approach has once again shifted, becoming more conservative and less settled. The paper delves into key judicial decisions related to two major concepts: consideration (the value exchanged in a contract) and consensus ad idem (mutual agreement). These concepts will be applied to recent and highly tendentious matters of forum exclusion clauses in adhesion contracts. By analyzing case law and judicial decisions, the paper highlights the ongoing debate between different legal philosophies and the challenge of balancing stability in the law with achieving justice in individual cases. Ultimately, it argues that understanding these shifts is crucial for navigating modern contractual disputes, particularly as new commercial realities, such as the digital and globalized economy, expose deeper tensions between formalist and equitable approaches to consensus, consideration, and the enforceability of contractual terms.
Trehan, Nick, The Uncertainty of the Criterion of Enforceability in Contracts (March 26, 2026), Canadian Law Review Research Paper (forthcoming).
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