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9 Geo. Mason L. Rev. 99 (2000-2001)
The Sophisticated Doctrine of Consideration

handle is hein.journals/gmlr9 and id is 109 raw text is: 2000]

THE SOPHISTICATED DOCTRINE OF CONSIDERATION
Val D. Ricks*
INTRODUCTION
The doctrine of consideration has been a favorite target of contract
law scholars for nearly a century. If they are not recommending its repeal,'
they are apologizing for its continued existence.2 Yet the doctrine is obvi-
ously not offensive enough to warrant its overruling3 or replacement by
* Associate Professor of Law, South Texas College of Law, Houston, Texas. The author thanks
(i) Paul McGreal, Matthew Mirow, Scott Pryor, and John Worley for helpful discussions of prior
drafts; (ii) participants at the Southeastern Conference of the Association of American Law Schools for
helpful comments following presentation of this paper at one of the Association's Young Scholars
sessions of its annual meeting; (iii) Chad Dunn for helpful research assistance and careful reading; (iv)
South Texas College of Law for funding summer research; and (v) South Texas librarians David
Cowan and Monica Ortale for help in obtaining sources. Of course, these kind friends are not responsi-
ble for errors the author has allowed to remain.
I See Clarence D. Ashley, The Doctrine of Consideration, 26 HARV. L. REV. 429 (1913); James
D. Gordon III, Consideration and the Commercial-Gift Dichotomy, 44 VAND. L. REV. 283 (1991)
[hereinafter Gordon, Commercial-Gift]; James D. Gordon III, A Dialogue About the Doctrine of Con-
sideration, 75 CORNELL L. REV. 987 (1990) [hereinafter Gordon, Dialogue]; Ernest G. Lorenzen,
Causa and Consideration in the Law of Contracts, 28 YALE L.J. 621, 643-46 (1919); Roscoe Pound,
Individual Interests of Substance-Promised Advantages, 59 HARV. L. REV. 1, 38 (1945); Malcolm P.
Sharp, Pacta Sunt Servanda, 41 COLUM. L. REV. 783 (1941); Geoffrey R. Watson, In the Tribunal of
Conscience: Mills v. Wyman Reconsidered, 71 TUL. L. REV. 1749, 1801-03 (1997); Mark B. Wess-
man, Retaining the Gatekeeper: Further Reflections on the Doctrine of Consideration, 29 LOY. L.A. L.
REV. 713 (1996) [hereinafter Wessman, Consideration 2]; Mark B. Wessman, Should We Fire the
Gatekeeper? An Examination of the Doctrine of Consideration, 48 U. MIAMI L. REV. 45 (1993)
[hereinafter Wessman, Consideration 1]; Lord Wright, Ought the Doctrine of Consideration be Abol-
ished from the Common Law?, 44 HARV. L. REV. 1225 (1936); accord Law Revision Committee,
Report on the Statute of Frauds and the Doctrine of Consideration (Sixth Interim Report, Cmd. 5449,
1937) (law reform commission report recommending that the consideration doctrine be abolished in
the United Kingdom).
2 See Howard Engelskirchen, Consideration as the Commitment to Relinquish Autonomy, 27
SETON HALL L. REV. 490 (1997); Edwin W. Patterson, An Apology for Consideration, 58 COLUM. L.
REV. 930 (1963) ([C]onsideration is not here defended as a perfect legal device in the best of possible
worlds. Its excrescences should be removed by legislation or judicial decision, and its principal alter-
native, promissory estoppel, should be expanded slowly by careful judicial empiricism. Even pure
gift-promises might be made enforceable with extreme and unusual safeguards. With these improve-
ments, one need never-well, hardly ever-apologize for the doctrine of consideration.); Lon L.
Fuller, Consideration and Form, 41 COLUM. L. REV. 799 (1941); Henry Winthrop Ballantine, Is the
Doctrine of Consideration Senseless and Illogical?, 11 MICH. L. REV. 423 (1913).
Some apologize for teaching the doctrine. See, e.g., Peter Linzer, Consider Consideration, 44
ST. Louis U. L.J. 1317, 1317 (2000) (Should we weave webs with it to sharpen our students' legal
analyses or demystify it by letting them know up front that it's really very easy and rarely matters in
practice?--justifying teaching of consideration because it makes us ask why we enforce promises).
3 See Arthur L. Corbin, Non-Binding Promises as Consideration, 26 COLUM. L. REV. 550, 556
(1926) ([T]he time has come to abandon the requirement of a consideration; but the existing decisions
show that the courts would not now follow such a rule.). Accordingly, the Restatement (Second) of
Contracts, reformist in many areas of contract law, retains the consideration requirement.

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