Random thoughts on the doctrine of consideration from my drive to work
Theorists of contract law have generally assumed that one of the more important questions that they ought to answer is “What promises should the law enforce?” After all, no society makes all promises legally enforceable. We wouldn’t want people to be able to sue over a broken promise to do lunch would we? The result is the doctrine of consideration, a conceptual muddle that delights law professors, confuses first year law students, and — as near as I can tell — makes little or no difference in actual practice. I wonder, however, if the whole thing isn’t a solution to a pseudo-problem.
Take the promise to do lunch. We wouldn’t want people to sue over such a trivial thing, so we need some doctrine by which the lunch promise isn’t legally enforceable. But why, I ask. As it happens, a sufficiently imaginative lawyer and a Cardozo-esque judge could probably find consideration on the promise to do lunch. And yet there is very little litigation on the subject. Why? The answer is pretty obvious: lawsuits are expensive and the damage suffered by the disappointed promisee in this hypo is trivial. It doesn’t pay to sue. The obvious answer, however, has a potentially important implication for contracts, namely that the cost of litigation rather than the doctrine of consideration is the real keeper of the gate between “legal” promises and trivial promises with which the law is unconcerned. If that is the case, however, then perhaps we needn’t ask the question “What promises should the law enforce?” at all. Just say that any promise that is sufficiently definite may be sued upon. The result will not be a flood of litigation. To see why, consider the tort of battery. I am constantly subjected to un-consented-to touching when I jostle folks on the side walk. (Or at least I was before I moved to a town with more geese than people.) Yet the court system is not awash in battery cases. And so, it seems to me, it could be for promises.