5. Consideration and Promissory Estoppel

Contract Law ◽  
2020 ◽  
pp. 142-244
Author(s):  
Ewan McKendrick
Keyword(s):  
Contract Law ◽  
Limited Effect ◽  
The Future ◽  
The Law

The doctrine of consideration is one feature of English contract law that readily distinguishes it from the law of contract in civilian jurisdictions. Its essence is that a promisee cannot enforce a promise unless he has given or promised to give something in exchange for the promise, or unless the promisor has obtained (or been promised) something in return. In other words, there must have been a bargain between the parties. This chapter analyses the current scope of the doctrine of consideration, particularly the rule that consideration must be sufficient but need not be adequate; the pre-existing duty rule and the question whether a promise to pay, or part payment of a debt, is good consideration for the discharge of the entire deb; and the rule that past consideration is not good consideration. It also examines the role of promissory estoppel in contract cases. An estoppel gives (at least limited) effect to a promise that would otherwise be unenforceable, thus the effect of an estoppel may be to supplement, or even supplant, the doctrine of consideration. The chapter concludes with a brief discussion of the future of the doctrine of consideration and, in particular, draws on the critique of consideration developed by Professor Atiyah.

5. Consideration and Promissory Estoppel

Contract Law ◽  
2018 ◽  
Author(s):  
Ewan McKendrick
Keyword(s):  
Contract Law ◽  
Limited Effect ◽  
The Future ◽  
The Law

The doctrine of consideration is one feature of English contract law that readily distinguishes it from the law of contract in civilian jurisdictions. Its essence is that a promisee cannot enforce a promise unless he has given or promised to give something in exchange for the promise, or unless the promisor has obtained (or been promised) something in return. In other words, there must have been a bargain between the parties. This chapter analyses the current scope of the doctrine of consideration, particularly the rule that consideration must be sufficient but need not be adequate, the pre-existing duty rule and the question whether a promise to pay, or part payment of a debt, is good consideration for the discharge of the entire debt, and the rule that past consideration is not good consideration. It also examines the role of promissory estoppel in contract cases. An estoppel gives (at least limited) effect to a promise that would otherwise be unenforceable, thus the effect of an estoppel may be to supplement, or even supplant, the doctrine of consideration. The chapter concludes with a brief discussion of the future of the doctrine of consideration and, in particular, draws on the critique of consideration developed by Professor Atiyah.

6. Formalities

Contract Law ◽  
2020 ◽  
pp. 245-258
Author(s):  
Ewan McKendrick
Keyword(s):  
General Rule ◽  
Contract Law ◽  
Legal Systems ◽  
The Past ◽  
The Future ◽  
The Law ◽  
Formal Requirements ◽  
Made In

Requirements of form (such as writing) are not as important today as they were in the past. As a general rule, contracts can be made in any form and can be proved by any means, although there remain exceptional cases where the law does insist upon requirements of form. This chapter, which considers the reasons for continued reliance upon requirements of form, along with the criticisms levelled against such requirements, begins by explaining why legal systems impose formal requirements upon contracting parties. It then outlines the formal requirements in English contract law, followed by a discussion of the future of formal requirements, noting the distinction between cases where the contract must be made in writing and cases in which contracts must be evidenced in writing.

6. Formalities

Contract Law ◽  
2018 ◽  
Author(s):  
Ewan McKendrick
Keyword(s):  
General Rule ◽  
Contract Law ◽  
Legal Systems ◽  
The Past ◽  
The Future ◽  
The Law ◽  
Formal Requirements ◽  
Made In

Requirements of form (such as writing) are not as important today as they were in the past. As a general rule, contracts can be made in any form and can be proved by any means, although there remain exceptional cases where the law does insist upon requirements of form. This chapter, which considers the reasons for continued reliance upon requirements of form, along with the criticisms levelled against such requirements, begins by explaining why legal systems impose formal requirements upon contracting parties. It then outlines the formal requirements in English contract law, followed by a discussion of the future of formal requirements, noting the distinction between cases where the contract must be made in writing and cases in which contracts must be evidenced in writing.

Unenforceable Contracts and Unjusticiable Contracts: Secs. 32–33 of the Contracts (General Part) Law, 1973

1986 ◽  
Vol 21 (3-4) ◽  
pp. 425-449 ◽  
Author(s):  
Gabriela Shalev
Keyword(s):  
Civil Law ◽  
Contract Law ◽  
The Future ◽  
General Part ◽  
The Law ◽  
Preparatory Work

The Contracts (General Part) Law, 1973, is the fundamental statute in Israeli contract law, and will in the future serve as the basis for the codification of Israel civil law. The Law was enacted following a decade of meticulous preparatory work by a committee headed by Professor Tedeschi. Prof. Tedeschi was the leading intellectual force in this committee; his influence is apparent in the approaches, principles and concepts of the Law, as well as in its particular provisions. Prof. Tedeschi also devoted a part of his prolific writings to the realm of contracts law. This article, dealing with only two sections of the wide-ranging Contracts (General Part) Law, is dedicated with admiration to the father of Israeli modern contract law.

Contract as Promise: Lessons Learned

2019 ◽  
Vol 20 (2) ◽  
pp. 367-379
Author(s):  
Charles Fried
Keyword(s):  
Twentieth Century ◽  
Contract Theory ◽  
Choice Theory ◽  
Contract Law ◽  
Lessons Learned ◽  
Self Determination ◽  
Theory Approach ◽  
The Law ◽  
The Way

Abstract In The Choice Theory of Contracts, Hanoch Dagan and Michael Heller state that by arguing “that autonomy matters centrally to contract,” Contract as Promise makes an “enduring contribution . . . but [its] specific arguments faltered because [they] missed the role of diverse contract types and because [it] grounded contractual freedom in a flawed rights-based view. . .. We can now say all rights-based arguments for contractual autonomy have failed.” The authors conclude that their proposed choice theory “approach returns analysis to the mainstream of twentieth-century liberalism – a tradition concerned with enhancing self-determination that is mostly absent in contract theory today.” Perhaps the signal flaw in Contract as Promise they sought to address was the homogenization of all contract types under a single paradigm. In this Article, I defend the promise principle as the appropriate paradigm for the regime of contract law. Along the way I defend the Kantian account of this subject, while acknowledging that state enforcement necessarily introduces elements — both normative and institutional — for which that paradigm fails adequately to account. Of particular interest and validity is Dagan and Heller’s discussion of contract types, to which the law has always and inevitably recurred. They show how this apparent constraint on contractual freedom actually enhances freedom to contract. I discuss what I have learned from their discussion: that choice like languages, is “lumpy,” so that realistically choices must be made between and framed within available types, off the rack, as it were, and not bespoke on each occasion. I do ask as well how these types come into being mutate, and can be deliberately adapted to changing circumstances.

scholarly journals Dispute settlement under the United Nations Convention On the Law of the Sea and Its Role in Oceans Governance

2021 ◽  
Author(s):  
◽  
Anshuman Chakraborty
Keyword(s):  
United Nations ◽  
Dispute Settlement ◽  
Law Of The Sea ◽  
Traditional Role ◽  
Actual Role ◽  
The Future ◽  
United Nations Convention ◽  
The Law ◽  
Dispute Settlement Mechanisms

<p>This thesis is about the dispute settlement provisions of the 1982 United Nations Convention on the Law of the Sea (LOSC or Convention), and the potential and actual role that they play in oceans governance. The study focuses not only on the traditional role of dispute settlement mechanisms in peacefully settling disputes, but also on their potential for contribution to good oceans governance in many ways. The jurisprudence generated so far under the dispute settlement provisions of the LOSC can be called neither a complete success nor a total failure. Part XV of the Convention, dealing with dispute settlement procedures, has made a promising start with the inaugural jurisprudence under the prompt release and provisional measures proceedings. However, besides the general beneficial influence of the jurisprudence on oceans governance, a few detrimental developments have also been identified from the perspective of oceans governance. The present thesis demonstrates that a lot of hope had been pinned on the dispute settlement provisions at the time when the LOSC was drafted. However, most of these hopes have not yet found expression, and if the limited use of dispute settlement procedures continues, it is unlikely that Part XV will fulfil those hopes in the future. Nevertheless, this thesis argues along more optimistic lines, and expresses a realistic hope that the actual role of dispute settlement in oceans governance will improve in the future. The thesis concludes that the success or failure of the dispute settlement mechanisms mostly depends upon their actual use made by states. Further, the dispute settlement mechanisms once invoked must be able to settle disputes objectively on the basis of law, equity and justice and uphold the principles and provisions of the LOSC. It is hoped that states will have recourse to Part XV more often for the purpose of settling their disputes peacefully, and that the dispute settlement provisions will in turn fulfil their mandate. Only then will the world witness the dispute settlement mechanisms playing a real and beneficial role in oceans governance, concurrently with other oceans governance institutions and arrangements.</p>

scholarly journals Greening the Judiciary

2017 ◽  
Vol 9 (3) ◽  
pp. 71
Author(s):  
M Kidd
Keyword(s):  
South African ◽  
Environmental Context ◽  
Correct Interpretation ◽  
The South ◽  
The Future ◽  
The Law

This note considers the performance of the South African courts in deciding environmental cases and suggests that, notwithstanding some good decisions, there are still too many decisions where the courts are not applying relevant legislative provisions or misinterpreting the law. It is suggested that the future acceptable performance of the courts not only rests on correct interpretation and application of the legislation, but also increased familiarity by judges with the technical environmental context within which the cases are situated. The role of legal practitioners in achieving this is also highlighted.

Capacity to Contract

2021 ◽  
pp. 27-38
Author(s):  
Bruce W. Frier
Keyword(s):  
Young Adults ◽  
Subject Matter ◽  
Contract Law ◽  
Limited Capacity ◽  
The Subject ◽  
The Law

This brief chapter gives an overview of the diminished contractual capacity of some Romans: children, the insane, young adults, and women. The law is intended to protect them, but also those with whom they make contracts, some of whom may be unaware of their partners’ limited capacity. The role of guardians in authorizing transactions is emphasized. The material in this chapter is introductory, for students who have not previously studied the law of status; this law has important effects on the overall structure of Roman contract law. The subject matter is partially taken up again in Part A of Chapter VII, where the ability to acquire rights and duties through one’s dependents is examined.

JAVNOBELEŽNIČKA FORMA UGOVORA U NASLEDNOM PRAVU

2021 ◽  
Author(s):  
Tamara Đurđić - Milošević ◽  
Keyword(s):  
Contract Law ◽  
Special Significance ◽  
Inheritance Law ◽  
Legal Policy ◽  
Policy Goals ◽  
The Law ◽  
Notary Public

With the introduction of the of notary public into Serbian law, notary services are gaining more and more importance, and thus the role of notaries has become more dominant in different fields of law, primarily in contract law. Proscribing the notarial form as ad solemnitatem form for the validity of some contracts, thus deviating from the principle of consensualism inherent to the law of obligations, the question of the justification of the constitutive character of the notarial form arises. In order to find the answer to the raised question, it is necessary to examine the types and functions of the form determined by legal policy goals which justify formalism in contract law, and whose realization is especially contributed by notaries as actors in shaping legal transactions. The notarial form also has a special significance for contracts of inheritance law, where it has been proscribed as obligatory for the most important contracts (inheritance law contracts, contract on lifelong maintenance, contract on assignment and distribution of property during lifetime ). The aim of this research is to determine the significance of the notarial form in contractual inheritance law.

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