Consideration and Form

Abstract

It is clear that no legal system treats all agreements as enforceable contracts. In every legal system there exist rules which identify the types of agreement that are to be treated as enforceable contracts. The function of these rules is to give what we shall call the ‘badge of enforceability’ to certain agreements. In English law that function is performed principally by the doctrine of consideration and, to a lesser extent, by a doctrine of formalities. Of course, it could be argued that the rules relating to duress, misrepresentation and illegality play a role in identifying those agreements which are to be treated as enforceable contracts (see Atiyah, 1986c) and, to some extent, this is true. But English law has, historically, viewed the requirements of consideration and form as being separate and distinct from doctrines such as duress and this is the approach which we shall adopt in this chapter.