Considering consideration : a critical and comparative analysis of the doctrine of consideration in the Anglo-Canadian common law
University of British Columbia
Master of Laws - LLM
The doctrine of consideration is widely regarded as one of the most problematic contract law doctrines present within the common law. For many years, there had been discussion about its possible removal, but recent times this discussion appears to have come to a virtual halt and little has been done to improve the current situation. It seems that many of the possibilities for the reform of the doctrine of consideration have already been explored by various reform committees and subsequently rejected. In order to re-open the discussion surrounding the problems caused by consideration, and to present further possibilities, this thesis explores a different approach to the reform of the doctrine; it focuses on the modification of contracts in the Anglo-Canadian common law, an area in which consideration has come to be a particular problem and identifies the ways in which the German civil law might act as an aid to the reform of the law in this area. In order to do this, the history of the doctrine of consideration and its German civil law equivalents is examined so as to identify common areas in their development. The reasons for the current need for the reform of the doctrine of consideration in the Anglo-Canadian common law, including its complexity, its use as a mask for the real reasons behind judicial decision-making and the common trend towards the harmonization of contracts law, are then identified. The German rules on the modification of contracts are subsequently identified using a modified functional comparative approach. These rules are then examined in order to determine the ways in which they differ from the Anglo-Canadian common law in the absence of a doctrine of consideration-the main difference being that there is no doctrine of consideration, nor anything comparable to it, within the German law. Finally, it is concluded that the German law would best be used as inspiration for a set of model laws, developed using both the Anglo-Canadian common law and the German civil law.
Attribution-NonCommercial-NoDerivatives 4.0 International
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