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.37 His defini-tion limits the law of consideration to the issue of supporting the enforce-ability of the promise; in turn, he will limit the scope of contract law gener-ally to such enforceable promises.Summary: Limiting Considerationto the Enforceability of PromisesUntil classical theorists reformulated the doctrine of consideration, it wasfar from being a unified doctrine with one consistent meaning, or even onespecific context for use.Although this internal differentiation or diversity ofconsideration seems lately to have been forgotten, as recently as 1941 KarlLlewellyn introduced a symposium on consideration with these words: Consideration is not in any meaningful sense a topic.The term, as roughlyused in these papers, relates to no unified body of states or problems of fact.There is instead an historically collected agglomeration of states of factlike pebbles in pudding-stone held together by the sole tie of being alleg-edly covered by the same legal doctrine.But the legal doctrines concernedare not the same ; they are not a single body.38In each of the areas discussed above, classical theorists attempted tocleanse the doctrine of consideration of its nonpromissory elements.Ineach case, the doctrine was recharacterized, shifting its contribution from36.Id.at 1021.37.Id.at 1011 ( The consideration of a promise is the thing given or done by the promisee in exchangefor the promise ).38.Karl N.Llewellyn, On the Complexity of Consideration: A Foreword, 41 Colum.L.Rev.777,778 79 (1941).Llewellyn continues, in an argument closely analogous to the one made here:In learning or teaching or applying the doctrine of consideration, we have rather successfullyobscured the disunity of field of fact-problem and also of doctrine by several devices.The first hasbeen to make out a field of contract ; to call it a field of promise (while leaving out such promisesas were traditionally or by neglect treated under other heads, but including such non-promissoryagreements as we chose). 32 g i f t s a n d p r o m i s e s r e v i s i t e ddetermining the contents of an obligation toward the question of its forma-tion.Significantly, this was an attempt to define contract as against otherforms of obligation, whether rooted in gifts, in some other version of gratu-itous transaction, in an idea of status, or otherwise imposed through stan-dardized relationships.A quick rundown of the oppositional ideas may clarify.In purging con-sideration of its connection to implied obligations, classical theorists weremarginalizing what they came to call quasi-contractual obligation, a typeof obligation understood by all as resting on state imposition of duties.Indenying the functions of consideration regarding the duty of care and theextent of liability, theorists were submerging the importance of standardizedrelationships, like bailor-bailee, in determining the content of obligationsbetween contractual partners.Finally, eliminating the function of consider-ation that dealt with exemptions from the requirement of privity was a wayto limit the importance of an existing statuslike relationship (nearly alwaysbetween a father and his dependent children) from conceptions of contractenforcement.It is worth emphasizing that my claim here is not that classical theoristsinvented out of thin air the important function of consideration in determin-ing which promises the law should enforce.Rather, it has been my intentionto show that consideration doctrine up until the late nineteenth century alsoencompassed a number of other questions and problems, and that classicaltheorists purged consideration theory of these extraneous elements in or-der to advance a promise-centered conception of contract.That purging wasthe first prong in a two-part strategy, and I now turn to the second, positivepart, of generalizing the question of promise enforcement.g e n e r a l i z i n g t h e q u e s t i o n o fp r o m i s e e n f o r c e m e n tThe second half of the classical revolution of consideration theory was topresent consideration as the answer to the question of which promises thelaw should enforce, and in turn to make that question the boundary defin-ing the scope of contract law generally.Thus, whereas contract up until themid-nineteenth century included an entire array of state-imposed obliga-tions entered into wholesale by some manifestation of voluntariness, classi-cal theorists reconceived the field as including primarily obligations under- t h e r e v o l u t i o n i n c o n s i d e r a t i o n d o c t r i n e 33taken by rational agents who promise, and by promising, shape the contentsof their own obligations.Classical theorists made consideration the axis around which all of con-tract revolved.The most effective strategy for making consideration so cen-tral was simply to accord it heightened attention, to show that it was adoctrine worth the investment of scholarly energy.Before the classical pe-riod, consideration, like offer and acceptance, was a minor issue in contracttheory.Parsons, for instance, devoted less than 5 percent of his treatise tothe combination of consideration and assent.39 In contrast, in both his case-book and Summary, Langdell devoted close to thirty percent of the workto consideration.40 In the decades following publication of Langdell s case-book, there was a veritable outpouring of writing on consideration, dealingwith everything from general theories of consideration to the most intricateor nice questions regarding the time of consideration and to whom andfrom whom the consideration must move [ Pobierz całość w formacie PDF ]
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.37 His defini-tion limits the law of consideration to the issue of supporting the enforce-ability of the promise; in turn, he will limit the scope of contract law gener-ally to such enforceable promises.Summary: Limiting Considerationto the Enforceability of PromisesUntil classical theorists reformulated the doctrine of consideration, it wasfar from being a unified doctrine with one consistent meaning, or even onespecific context for use.Although this internal differentiation or diversity ofconsideration seems lately to have been forgotten, as recently as 1941 KarlLlewellyn introduced a symposium on consideration with these words: Consideration is not in any meaningful sense a topic.The term, as roughlyused in these papers, relates to no unified body of states or problems of fact.There is instead an historically collected agglomeration of states of factlike pebbles in pudding-stone held together by the sole tie of being alleg-edly covered by the same legal doctrine.But the legal doctrines concernedare not the same ; they are not a single body.38In each of the areas discussed above, classical theorists attempted tocleanse the doctrine of consideration of its nonpromissory elements.Ineach case, the doctrine was recharacterized, shifting its contribution from36.Id.at 1021.37.Id.at 1011 ( The consideration of a promise is the thing given or done by the promisee in exchangefor the promise ).38.Karl N.Llewellyn, On the Complexity of Consideration: A Foreword, 41 Colum.L.Rev.777,778 79 (1941).Llewellyn continues, in an argument closely analogous to the one made here:In learning or teaching or applying the doctrine of consideration, we have rather successfullyobscured the disunity of field of fact-problem and also of doctrine by several devices.The first hasbeen to make out a field of contract ; to call it a field of promise (while leaving out such promisesas were traditionally or by neglect treated under other heads, but including such non-promissoryagreements as we chose). 32 g i f t s a n d p r o m i s e s r e v i s i t e ddetermining the contents of an obligation toward the question of its forma-tion.Significantly, this was an attempt to define contract as against otherforms of obligation, whether rooted in gifts, in some other version of gratu-itous transaction, in an idea of status, or otherwise imposed through stan-dardized relationships.A quick rundown of the oppositional ideas may clarify.In purging con-sideration of its connection to implied obligations, classical theorists weremarginalizing what they came to call quasi-contractual obligation, a typeof obligation understood by all as resting on state imposition of duties.Indenying the functions of consideration regarding the duty of care and theextent of liability, theorists were submerging the importance of standardizedrelationships, like bailor-bailee, in determining the content of obligationsbetween contractual partners.Finally, eliminating the function of consider-ation that dealt with exemptions from the requirement of privity was a wayto limit the importance of an existing statuslike relationship (nearly alwaysbetween a father and his dependent children) from conceptions of contractenforcement.It is worth emphasizing that my claim here is not that classical theoristsinvented out of thin air the important function of consideration in determin-ing which promises the law should enforce.Rather, it has been my intentionto show that consideration doctrine up until the late nineteenth century alsoencompassed a number of other questions and problems, and that classicaltheorists purged consideration theory of these extraneous elements in or-der to advance a promise-centered conception of contract.That purging wasthe first prong in a two-part strategy, and I now turn to the second, positivepart, of generalizing the question of promise enforcement.g e n e r a l i z i n g t h e q u e s t i o n o fp r o m i s e e n f o r c e m e n tThe second half of the classical revolution of consideration theory was topresent consideration as the answer to the question of which promises thelaw should enforce, and in turn to make that question the boundary defin-ing the scope of contract law generally.Thus, whereas contract up until themid-nineteenth century included an entire array of state-imposed obliga-tions entered into wholesale by some manifestation of voluntariness, classi-cal theorists reconceived the field as including primarily obligations under- t h e r e v o l u t i o n i n c o n s i d e r a t i o n d o c t r i n e 33taken by rational agents who promise, and by promising, shape the contentsof their own obligations.Classical theorists made consideration the axis around which all of con-tract revolved.The most effective strategy for making consideration so cen-tral was simply to accord it heightened attention, to show that it was adoctrine worth the investment of scholarly energy.Before the classical pe-riod, consideration, like offer and acceptance, was a minor issue in contracttheory.Parsons, for instance, devoted less than 5 percent of his treatise tothe combination of consideration and assent.39 In contrast, in both his case-book and Summary, Langdell devoted close to thirty percent of the workto consideration.40 In the decades following publication of Langdell s case-book, there was a veritable outpouring of writing on consideration, dealingwith everything from general theories of consideration to the most intricateor nice questions regarding the time of consideration and to whom andfrom whom the consideration must move [ Pobierz całość w formacie PDF ]