Consideration and the Death of Contract Theory
It is argued that the traditional rule of past consideration is vague, unclear and uncertain without any real explanation and solid justification, and that is evidenced by the fact that courts, drafters of the Restatement (Second) of Contracts, and legal scholars have all struggled with the notion of that rule trying to find whether and in what circumstances it should be applied. Furthermore, the author agrees to a certain extent with the conclusion reached by professor Gilmore in relation to the doctrine of consideration that it has been reabsorbed into other branches of law, and that is evidenced by section 86 of the Restatement Second of Contracts. The author disagrees with professor Gilmore’s overall conclusion of the erosion of the doctrine of consideration, and the death of contracts, the fact that contracts are still flourishing and prospering everyday means that the conclusions reached are incorrect and they need reinvestigating.
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