Paul Davies. JC Smith's The Law of Contract (2018 2 ed). p. 449.
Mindy Chen-Wishart. Contract Law (2018 6 edn). p 312.

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I agree with

  1. Davies that 'consideration' is ambiguous and can be confounded.

  2. Lord Toulson that "failure of basis" is more accurate.

Please see question in title. Why was "consideration" standardized? This poly-semy is also mentioned on p. 277. Richard and Damian Taylor. Contract Law Directions (2019 7 ed).

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1 Answer 1


Basically, a long time ago, the "consideration" requirement to form a contract was quite substantial. But, over time, for a variety of reasons, the consideration requirement of contract law was eroded until it is almost meaningless. And, most of the time "failure of consideration" now means something akin to unconscionable, because the payment is too small in a context where a gift is not intended.

Consideration wasn't originally used in any context other than contract law, so the need to distinguish between payment and some other consideration wasn't present as the terminology developed. But, as the concepts were generalized, other reasons for supporting an agreement (e.g. justified reliance) emerged, but the terminology was by then closely associated with a particular fact pattern and so it remained.

Using new terminology is always disfavored in law because it divorces a decision from the long case law history that uses the term.

As another example, there is a modern tendency to favor the terminology of issue preclusion and claim preclusion in lieu of collateral estoppel and res judicata. But, if you want to find cases before the 1970s or so referring to those doctrines, you need to use the old terminology.

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