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- Title
Enforceability of Future Promises at Common Law - the Formation of Doctrine of Consideration –.
- Authors
Dudás, Attila
- Abstract
One of the basic tenets of the law of contract in countries that belong to the legal family of common law is that only such contractual promises are legally enforceable that are concerned with future promises, which means that contractual duties (at least one obligation of one of the parties) must pertain to performance in future. However, common law went a long way until it has reached the position that future promises are to be legally enforceable. This development is to be analyzed necessarily in the light of the so-called writ-system of common law, since until the end of 19th century, at common law a claim under substantive law existed only if the creditor had a chose in action, i.e. was entitled to submit a specific type of action (writ) to the court (action fit obligation). The first step in developing a general basis for enforcing future promises may have been found in action of covenant. The covenant was, however, similarly to stipulation of Roman law, a legal act subject to strict formalities; therefore any failure to observe the formalities hindered the enforceability of the covenant. In some sense, the action of debt could also be regarded as a vehicle for development of a basis for the enforcement of future promises, but it was also subject to a fundamental limitation. Namely, similarly to real contracts of Roman law, action of debt entitled the claimant to judicial protection of the promise made to him by the respondent, only if the claimant himself has rendered his performance beforehand, since the fundamental feature of real contracts is that the performance of claimant's promise is not considered only as an act of performing a contract, but also as an act of formation of a contract. Common law reaches the general basis for enforcing future promises only with the emergence of action of assumpsit, more precisely, with one of its special types, the indebitatus assumpsit. The process of developing a general basis for enforcing contracts under which none of the parties has rendered performance (so-called executory contracts) reaches its end in 1602 in Slade's case, in which the court settled that a party to a contract may always submit an action of assumpsit if the parties have reached a bargain, i.e. each and every bargain imports in itself an assumpsit. With Slade's case a new legal institution has emerged at common law, the notion of consideration, which even today delimits legally enforceable contractual promises from all other contract-like agreements that do not enjoy legal protection, legally unenforceable natural obligations. Consideration furnishes the bargain with such essential feature that renders it legally enforceable.
- Subjects
PROMISE (Law); COMMON law; CONTRACTS; ROMAN law; COVENANTS (Law); REAL contracts (Roman law)
- Publication
Novi Sad Faculty of Law: Collected Papers / Zbornik Radova: Pravni Fakultet u Novom Sadu, 2008, Vol 42, Issue 3, p349
- ISSN
0550-2179
- Publication type
Article