Subsume under ICLR

 Consideration – Currie v Misa: valuable consideration can consist in some right, interest,
profit or benefit accruing to the one party, or some detriment, loss or resposniblity given,
suffered or undertaken by the other.
 Problems with consideration doctrine
o Bar against third parties enforcing benefits
 Even if both parties intend to give third party right to enforce –
 This required CL & parl to try and remedy
o Roffey shows inadequacy – consideration concept stretched
 Russell LJ: ‘courts nowadays to be more ready to find consideration to
reflect the intention of the parties
 Reasonable to suppose company was willing to be bound, considerations
tretched to give effect to intention of the parties
o Foakes as absurdity – Lord Blackburn: businessmen generally recognize & act on the
ground that prompt payment may be more beneficial than to insist on their rights &
enforce payment of the whole
 Unjust that lender can resile
 Atiyah: promisor may have expected some return in an indirect way
 But consideration should not be abolished
o Fuller – consideration is useful way to indicate enforceability of contract
o OSullivan: clear rules that can be employed to ensure contracts work without
recourse to litigation
o But better to subsume consideration under ICLR – consideration as ‘one of the
methods’ – per Law Revision Commission – along with writing, used to demonstrate
ICLR
o Correct inquiry = whether parties have ICLR, as a conclusive requirement
 Not novel – done in German & Austrian contract law, only need declaration
of intent to be bound
 Absent from UNIDROIT principles, UN Convention on Contracts for Intl Sale
of Goods
 ICLR difficult to prove? Preston – hale disagreed that there is no ICLR
between minister & church
o But ICLR is already a contractual requirement – does not
‘add an additional requirement’
 English law already enforces gratuitous promises – since consideration can
be peppercorn – McGregor, Arden LJ
o McKendrick: unlike English law would adopt principle of consideration if it started
fresh