This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
If we judge by numerical authority, the doctrine of consideration is now thoroughly entrenched in our law. It has been sharply criticized by legal essayists as being indefinite in its application and as resting on bases which are purely historical. We find, furthermore, that the same courts which repeat the doctrine that consideration is necessary are constantly fighting against the consequences which would naturally flow from the doctrine which they repeat so frequently in obiter. In the attempts to find a consideration in an act or forbearance which is not agreed upon by the parties, in the cases that enforce a contract on the doctrine of estoppel without any consideration in the proper sense of the term, in the systematic and untiring attempts of the courts to find a technical consideration to support a promise which has no genuine consideration, in the willingness of the courts to enforce contracts, the consideration for which is entirely inadequate, or which is purely nominal, in the determination of many courts to make the recital of a consideration conclusive as to the validity and enforceability of the contract, we can see that courts which repeat in their formulae the doctrine of consideration are rendering mere lip service to a doctrine whose applications and consequences they dislike. It is possibly true that consideration rests primarily upon an historical basis, although the idea of necessity of something of value on each side of every transaction seems to have existed in English law long before the rise of the action of assumpsit.
If we may judge by analogy to Roman law, the development in our law will be towards the enforcement of all promises which are made deliberately and fairly, and which are free from mistake, fraud, duress, and the like. Whether our courts develop in this direction or not, and whether the legislature comes to their relief or not, they should, at least, cease juggling the facts of the cases and perverting the intention of the parties, in order to find a technical, nominal, or fictitious consideration, and thus to enforee the promise in question. They should either insist upon the necessity of a real and substantial consideration for every promise, or they should face the necessity of following the civil law in enforcing every fair and deliberate promise, irrespective of consideration.1
17 First Presbyterian Church v. Dennis, 178 la. 1352, L. R. A. 1917C, 1005, 101 N. W. 183.
18 First Presbyterian Church v. Dennis, 178 Ta. 1352, L. R. A. 1917C, 1005, 161 N. W. 183.
1 See, Is the Doctrine of Consideration Senseless and Illogical? by Henry Winthrop Ballantine, 11 Michigan Law Review, 423; for the Civil Law theory see Consideration v. Causa in Roman
American Law, Joseph H. Drake, 4 Michigan Law Review, 19; Nudum Pactum in Roman-Dutch Law, 0 Journal of Comparative Legislation, (N.S.) 84.