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Brown, James and Dyer, Karen (2026) This thing we call 'consideration': re-thinking consideration in English contract law in the 21st century. Nottingham Law Journal. ISSN 0965–0660 (Submitted)
One of the central tenets of English Contract law is the doctrine of consideration, which, in broad terms involves an exchange of benefits which underpin the essence of the ‘bargain’ the contracting parties have struck. During the last 200 years, Judges and scholars alike have explored this doctrine, but despite the best efforts of the Courts, both in England and in other common law jurisdictions, there remains doctrinal inconsistencies with respect to ‘consideration’, and as it currently stands, the law remains somewhat uncertain and incoherent – in short, a doctrinal mess.
This article seeks to investigate and elucidate the tensions surrounding ‘consideration’ in English contract law, by utilising a doctrinal research methodology in tandem with the classical Will Theory of Contract law to answer the normative question as to how we should define consideration. Contrary to the views of some scholars, the authors defend the role of consideration in contract formation/variation but argue that the time has come for the doctrine of consideration to be expanded.
Of significance, this article seeks to fill a gap in the current literature by examining the concept of ‘value’ for the purposes of the doctrine of consideration and promote a liberalised approach with particular focus on party intention and autonomy. As English Contract law is predominantly a case law subject, it is suggested any future development in this respect would best be achieved by a comprehensive ruling from the Supreme Court along the lines the authors suggest in this paper.
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