Private Law Theory

ABSTRACT
There is perhaps no single doctrine of the common law of contract that is more controversial than the doctrine of consideration. One frequent line of attack against it involves an appeal to civil law jurisdictions, which, it is claimed, demonstrate that the doctrine is both aberrant and unnecessary to a proper law of contract. This article offers a response to this argument that draws not upon the practical similarities between the civil law and common law traditions, but on the more fundamental differences between them. Rather than proceeding from an abstract understanding of rights and constructing particular private law relationships from them, as the modern civil law does, the common law begins by identifying the private law relationships in which individuals participate, and recognizes the rights (and duties) borne by them on the basis of that participation. This relationship-centric understanding of rights can be seen, among other things, in the common law’s narrower conception of contract as a promissory relationship, rather than as resting upon an abstract meeting of the parties’ wills. Significantly, it also underlies the common law’s peculiar emphasis on consideration and its main alternative, the use of a deed under seal. These are essential elements of contract formation at common law, because they embody two mutually exclusive forms of promissory relationship, namely the relationships of exchange and of giving and receiving, which are instead subsumed by the singular idea of a bilateral agreement under the civil law’s abstract conception of contract.

Sérafin, Stéphane, Rights, Contract and Consideration in the Civil Law and Common Law Traditions (May 1, 2025).