The legal system of common law in Anglo-Saxon

Extraits

[...] In order to enforce a contract, the courts observed the intention to the party to create legal relations, which is objectively interpreted (based on what a reasonable person in the position of the parties would have been likely to have intended) and based also on the public policy; as a matter of policy, the courts ought not to intervene in domestic situations. This principle was held in Balfour v. Balfour[2] where Atkin LJ explains with irony: consideration that really obtains for them is that natural love and affection which counts for so little in these old courts.” Atkin stressed that even if there were consideration, domestic agreements are not intended by parties to be legally binding. That is what means propensity to stop the doctrine of consideration from frustrating the intention of the parties”. [...]

[...] In the absence of economic duress, courts used consideration. Economic duress was defined later y Kerr J in Occidental Worlwide Investment Corporation v. Skils Avanti (The Siboen and the Sibotre)[4]and later Stilk was recognized as an economic duress case. But economic duress is more regarded nowadays as a regulator of contract modifications. This is the reason why Hobhouse said that: that there is a properly developed doctrine of the avoidance of contracts on the ground of economic duress, there is no warrant for the court to fail to recognize the existence of some consideration even though, it may be insignificant and even though there may have been no mutual bargain in any realistic use that phrase.” It means that courts should be readier to find consideration easily now that they know they can set aside a contract on economic duress. [...]

[...] As a result, it becomes irrelevant that the promisee has provided anything in exchange in terms of benefit to the promisor. To conclude the basic role of consideration rule in law of contract seems to be no more fundamental to make a contract enforceable. This is one of the reasons why it can be said that the doctrine is irrelevant. Another doctrine tends to make consideration disappear. Indeed, the historical development of the doctrine of the privity has an important link with the doctrine of consideration. [...]

[...] To a legal point of view, not all agreements are seen as enforceable contracts. Indeed, each legal system introduced some rules in order to determine which agreement is enforceable; this corpus of rules is called badge of enforceability”. In English law, the original principle of this “badge of enforceability” is the doctrine of consideration. Consideration is classically defined by reference to Currie v Misa[1] which held that: valuable consideration, in the sense of the law, may consist either in some right, interest, profit or benefit, accruing to the one party, or some forbearance, detriment; loss or responsibility given, suffered or undertaken by the other.” This is the orthodox view of consideration defined as benefit and detriment. [...]

[...] The doctrine of estoppel was explained for the first time in Central London Property Trust v. High Trees House Ltd[6] where owners of a block of flats had promised to accept reduced rents in 1939, during the war, and in 1945 the plaintiff returned to the original agreement and also queried other half of the rent for the war years. It is held that the plaintiff is entitled to return to the original full but he is not able to recover the balance for the war years. [...]