The Tomtit Theory of Consideration
I’ve been teaching contracts for a decade, and I thought I’d heard of everything. Then I came across this squib from Corbin on the adequacy of consideration:
“The rule that market equivalence of consideration is . . . to be left solely to the free bargaining process of the parties, leads in extreme cases to seeming absurdities. When consideration is only a “peppercorn” or a “tomtit” or a worthless piece of paper, the requirement of a consideration appeared to Holmes to be as much of a mere formality as a seal…”
A peppercorn or a tomtit? I know what the peppercorn theory of consideration is. Basically, consideration can be something of trivial value, so long as that value isn’t easily reducible to a certain sum, giving rise to the problem of inadequacy of exchange. Some years I’ve brought in a peppercorn, suggesting that it could – in some law school hypothetical universe – have subjective value to a particular student. (Perhaps a deity’s face is carved on it? Really.) Most law students have their semesters spiced up by reading about peppercorns in contracts. It’s like the Erie doctrine: apparently iconic, mysterious, deeply bizarre law.
But has anyone else ever taught that consideration can be a tomtit? A tomtit! In case you were wondering, a tomtit is a small New Zealand bird. Where did Corbin come to rely on this small bird to illustrate the point? An older (still) English case, Couldery v. Bartrum, 19 Ch. D. 394, 399 (1881), held that a creditor could take “a horse or a canary or a tomtit.” Couldery was in turn cited and popularized by Ames in his 1899 HLR article, “Two Theories of Consideration.” But, excepting a few stray references in the law reviews in the last two generations, no one refers to tomtits anymore. Peppercorns have replaced them in law school classrooms, though they are demonstrably less visually interesting, and wouldn’t give rise to the opportunity for a double lesson in tomtit gender identification.It’s time to bring tomtits back.