A. Introduction

• Author: John D. McCamus
• Profession: Professor of Law. Osgoode Hall Law School, York University
• Pages: 211-214

Page 211

The giving and, indeed, exchanging of promises or undertakings is a pervasive feature of our commercial and social lives. A question of central importance for the law of contracts is to articulate a basis for distinguishing between those promises that should properly attract the attention of the legal system as enforceable promises and those that should not. Although an argument could be fashioned on the basis of moral precepts that all promises should be considered binding as a matter of honour, few observers would suggest that all promises should be legally enforceable regardless of how rash and improvident they might have been and regardless of the setting, be it commercial or non-commercial, in which the promise was made. In the English common law tradition, two criteria of enforceability or rules for the recognition of enforceable promises have developed.

The basic principle is that promises will be enforced only if they form part of a bargain. The doctrine of consideration holds that to be enforceable, a promise must be purchased in the sense of being given in return for something of value provided by the promisee or, as is said, for "good consideration." The enforcement of bargains obviously plays an important role in the functioning of a modern credit economy. It is easily seen, therefore, that a strong rationale exists for the enforcement of bargains. What is less clear, however, is whether the doctrine of con-

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sideration or, as it is sometimes called, the bargain theory, successfully identifies the proper line of demarcation between those promises that should be considered enforceable by the legal system and those that should not. Indeed, the doctrine of consideration has attracted much criticism over the years. In the present chapter, after providing an account of various aspects of the application of the doctrine, we will return to consider the prospects for its reform.

The second rule of recognition for enforceable promises rests on the formal trappings within which the undertaking is given. Thus, centuries prior to the development of the doctrine of consideration, the English legal system recognized as enforceable those promises that were made in the form of sealed instruments. Although the manner or method of sealing instruments has evolved over time, the basic principle that a promise given under seal is enforceable simply because of the formal manner in which the undertaking has been given has...