Title

Contract Modifications: Reflections on Two Commonwealth Cases

Publication Type

Journal Article

Publication Date

2012

Abstract

The common law rule that a promise to perform a pre-existing obligation is no consideration is said to have done the most in giving the doctrine of consideration a bad name. While the English innovation of 'practical benefits' in Williams v Roffey has effectively enervated this rule, general discontentment with the conceptual difficulties residing in this approach has often led to calls for the abolition of consideration in the context of contract modifications. This article examines two Commonwealth cases that took this step and warns against an overly optimistic view of such a development. It argues, instead, that the post-Williams v Roffey conception of consideration may be useful in focusing attention on the exchange of value that gives promises contractual force in the first place, and the attainment of such value as the primary justification for facilitating contract modifications. Abandoning consideration may also be unsatisfactory because alternative autonomy-centred concepts are insufficient justifications for enforcing agreements to modify.

Discipline

Asian Studies | Contracts

Research Areas

Commercial Law

Publication

Oxford University Commonwealth Law Journal

Volume

12

Issue

2

First Page

189

Last Page

205

ISSN

1472-9342

Identifier

10.5235/14729342.12.2.189

Publisher

Hart Publishing

Additional URL

http://dx.doi.org/10.5235/14729342.12.2.189