The changing nature of the doctrine of consideration, 1750–1850

Abstract

Historically the substance of contractual obligations in English law was found in the idea of exchange. In the action of assumpsit exchange found expression in the doctrine of reciprocal consideration. Legal historians have usually argued that the courts began to undermine the traditional doctrine of consideration from the middle of the eighteenth century. It is said that the courts were willing to contemplate removing the requirement of consideration when the contract was in writing and that judges had begun to recognize that good consideration could be found in moral obligations. This orthodox description is guilty of exaggerating the threat to the traditional notion of consideration in the eighteenth century. One consequence of this interpretation is that it underplays the importance of the Will Theory in eroding the requirement of reciprocal consideration in the period after 1800.