A Lifeline For Consideration?

• Author: Art Ward
• Pages: 46-49

Cork Online Law R eview 2006 5

Ward, A Lifeline fo r Consideration?

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A LIFELINE FOR CONSIDERATION?

Art Ward

This essay examines the doctrine of consideration and its relevancy to

the modern law of contract. The writer defends the doctrine against criticism

by arguing that a doctrine which is continuing to evolve shows beyond doubt

its relevancy to the law. This is achieved through an examination of the

forbearance of consideration as seen in the case of O’Keefe v. Ryanair.1

In O’Keeffe v. R yanair Holdings PLC, Kelly J identified a new form of

forbearance consideration.

Clark (2004)2

The doctrine of consideration is one which had been both adopted

(according to Wright3 “the necessity of consideration is established by

authorities which not even the House of Lords could distinguish or disregard”)

and heavily attacked (Atiyah4 feels that it was never the original intention of

the courts to even create this doctrine). Some believe that to have successful

enforceable contracts then there is no doubt but that consideration is utterly

vital. However, in certain jurisdictions (eg Scotland) the entire premise of the

necessity of consideration of any variety does not exist. Such is also the case in

jurisdictions such as France, Italy, Spain or Germany.5 If legal systems can

function without it then why should it be kept in practice? The main reason is

that it is still evolving and progressing and being ultimately of great benefit in

contractual proceedings.

The difficulty then is to keep the doctrine to be seen to be of value in

the eyes of the law, (ironically the doctrine itself concerns itself with that very

objective). If the doctrine begins to become stale or dated then review and or

indeed repeal may become necessary. The entire idea of whether the doctrine

of consideration should indeed be abolished has been dealt with both

comprehensively and critically in a submission by Wright in the 49th Edition

of the Harvard Law Review.6 He feels it should be abolished despite its

noteable benefits. However, if new aspects to it are being identified then

surely it should remain. The fact that new forms of consideration are being

identified would most certainly give rise to the argument that the doctrine

needs not only to be kept, but also to be guarded and amended as necessary. A

doctrine which has worked to such a full extent for such a prolonged period of

time, is one which should, prima facie, be maintained at all costs.

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1 O’Keeffe v Ryanai r Holdings PLC [2003] 1 ILRM 14 .

2 R. Clarke, Contra ct Law in Ireland (Thomson Roun d Hall, 2004, fifth edition).

3 L. Wright, ‘Ought the Doctrine of Consideration to be Abolished?’ 1936 49 Harvard L aw

Review 1226.

4 P. McDermott, Co ntract Law (Butterworth Ltd, 20 01) 102.

5 Supra n 1.

6 Ibid p1126.