- Elgar original reference
Edited by Jan M. Smits
Chapter 17: Consideration*
The doctrine of consideration is peculiar to common law jurisdictions. It is the result of (1) a pragmatic attempt by judges before the 19th century to set limits to enforcement of a promise by a writ of assumpsit; (2) a formalistic attempt in the 19th and early 20th century to define consideration; and (3) a pragmatic attempt by judges to give relief when a contract was unfair, even though these same judges did not admit that a court should consider the fairness of a contract. The result is what one might expect: a jerry-built amalgam of pre-19th-century concern with the limits of writs, formalistic efforts to define pragmatically forged concepts, and efforts to police the fairness of a contract with a tool never designed for that purpose.
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