The element of consideration in american contract law la consideración en los contratos
| Autor | María Concepción González González |
| Cargo | Profesora de Inglés Jurídico de la Facultad de Derecho de la Universidad Anáhuac México Norte. |
| Páginas | 315-322 |
Page 315
According to Professor Paul Barron, the American legal System is made up of personal and property rights.1 In general criminal law, tort law, property law, and contract law refer to the way Americans organize and protect personal and property rights.
According to Black's Law Dictionary a contract can be defined as an agreement that the law will enforce. 2 The word contract is usually accepted for written contracts, an agreement may be binding on both parties even if it is oral, although the Statute of Frauds requires some contracts to be in writing to be binding.
In a high level point of view, Contract law vindicates private rights, but in the real practice this area overlaps with others. There are numerous doctrines and legal rules applicable to Contracts created by English and American courts over the past five hundred years. Nowadays the general study of Contracts has been divided by legal scholars in two main branches:
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Restatement of Contracts
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Treatises
In addition to the previous división American jurists have created the Uniform Commercial Code, which focuses in the rules developed by the Common Law. 3 In an overall view, we can state that a substantial change in contract theory occurred in the middle of this century. Page 316
The fact that a promise has been made does not mean the promise can or will be enforced. Under Roman law, a promise was not enforceable without some sort of cause that is, a reason for making the promise that was also deemed to be a sufficient reason for enforcing it. Since the beginning of the common law tradition in England, good reasons for enforcing informal promises have been held to include something given as an agreed-on exchange, a benefit that the promisor received, and a detriment that the promisee incurred. Over time, these reasons came to be referred to legally as consideration.4
Derived from the above mentioned change a "universal" set of rules that controlled contractual rights was created. That approach towards contracts is today known as legal formalism. On the other side, another approach known as the legal realists began to emerge in the 1940's, and stated that judges used many different assumptions, moral views and diverse backgrounds in deciding contract principles. They thought a judge should use all relevant disciplines in deciding the correct principles to be applied.
During the 70's through the 90's, unification of concepts occurred due to an economic-analysis that focused mainly in the efficiency and critical theory, which basically focused on the claims of the unrepresented such as the Feminist Theory, the Critical Race Theory among others.
Nowadays those theories and influences operate on American courtrooms. Judges invoke them expressly or using underlying assumptions as arguments.
The traditional study approach of contract law is divided into:
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Mutual Assent and Bargain-for-exchange.
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Proof of Existence and Meaning of a Contract.
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Contract Avoiding Mechanisms
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Damages and other Remedies.
For the purposes of this article, we are going to refer only to the first segment, specifically in the element of consideration.
Mutual Assent, and Bargain-for-exchange, refers to the doctrine regarding offer and acceptance, and the doctrine of consideration, also known as the "classical system" of common law contract creation.
The process of offer and acceptance relies on three stages:
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Preliminary negotiation
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Offer
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In the alternative:
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1 Acceptance
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2 Offer lapse
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3 Offer revokes
C.4 Counter-offer Page 317
There can be no contract unless the mind of the parties have met and mutually agreed upon something specific, according to section 25 of the Restatement of the Law on Contracts.
This section reads:
If from a promise or manifestation of intention, or from the circumstances existing at the time, the person to whom the promise or manifestation is addressed knows or has reason to know that the person making it does not intend it as an expressión of his fixed purpose until he has given a further expressión of assent, he has not made an offer.5
An offer is the manifestation of willingness to enter into a bargain, an acceptance is a manifestation of assent to the terms thereof made by the offeree in a manner invited or required by the offer.6
There are two main types of contracts arising from an offer, unilateral and bilateral. In the first one, only one party (the offeror) makes a promise, and the offeree provides the offeror with an act, while in the second case, both parties make promises.
Usually a bilateral contract will be formed by an exchange of promises. However, it can be an exchange of performances or an exchange of performance for a promise.
An offer may be accepted only by the person in whom the offeror intended to create a power of acceptance.7 It is known that the party creating an offer gets control over the contents of it, and can prescribe the form or method to accept it.
Besides Offer and Acceptance which are essential elements, consideration needs to be present.
The Exchequer Chamber in 1875 defined consideration as follows:
"A valuable consideration, in the sense of the law, may consist either in some right, interest, profit or benefit accruing to the one party, or some forbearance, detriment, loss or responsibility given, suffered, or undertaken by the other."8
Consideration in the classical...
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