The Newbold (1906), Justice Macnaghten stated that an

The enforceability of contracts has undoubtedly proven itself to be a massively integral part of the law of contract in order to ensure that all parties of a contract are treated fairly and deservedly. Consideration, or the reason one enters a contract (broadly defined), has been the main tool used in English contract law to prove whether contracts are enforceable or not.1However, the definition of consideration and its importance has been put under much scrutiny over the last few years due to its different meanings and other self-discrepancies. As a result, debate has persisted over whether consideration should be a valid and used instrument in the study of enforceability of contracts, or whether it should simply be abolished as it is no longer necessary in a legal contract. In order to decide whether or not the notion of consideration should be abolished from the modern English contract law or not, it can be discussed through analysing the availability of better and more focused methods of proving the enforceability of a contract, the wide scope of the notion’s definition and its rules, and what would potentially 1Jill Poole, “Textbook on Contract Law” (2016 Edition, Oxford University Press, 2016)12117383993happen if consideration was abolished.Although the notion of consideration hasproven itself to be the most valuable instrument in determining the enforceability of contracts based on its more than frequent use, there are alternatives available that may seem to be more focused and easily used in order to differentiate between enforceable and unenforceable contracts.

One of the alternatives is the doctrine of unconscionability. The doctrine of unconscionability is a defence available to a party of a contract which seems to be treated unfairly in terms of the contents of the contract.2Justified by Justice Kay in her decision in Fry v Lane (1888), “… where a purchase is made from a poor and ignorant man at a considerable undervalue, the vendor having no independent advice, a court of equity will set aside the transaction.”3This doctrine therefore applies when consideration is absent, making it a potentially strong alternative. In Samuel v Newbold (1906), Justice Macnaghten stated that an unconscionable contract is is “unreasonable and not in accordance with the ordinary rules of fair dealing.

“4The entrenchment of this doctrine made perverse contracts, in regard to unfairness, disagreeable in the absence of consideration. However, in Chitty on Contracts, where the doctrine of unconscionability is referred to as unconscionable bargains, Chitty states that there are three limitations to the doctrine.5These 2Eric A. Posner, “Contract Law in the Welfare State: A Defense of the Unconscionability Doctrine, Usury Laws, and Related Limitations on the Freedom to Contract,” The Journal of Legal Studies 24, no. 2 (Jun., 1995)3Fry v Lane 1888 40, 3124Samuel v Newbold 1906 AC 4615Lloyd Duhaime, Contract Law,>17383994limitations do not alter or affect the doctrine’s strength as an alternative, however one might say that something that does affect it is the fact that it is still a relatively new doctrine. This poses a disadvantage to its strength as an alternative as it being a new doctrine means that it does not have a high multitude of cases to prove its reliability yet.6Another alternative available would be economic duress. It is a relatively modern part of English Law that has originated from decisions such as Universe Tankships Inc. of Monrovia v International Transport Workers’ Federation, The Universe Sentinel 1983.

In the case, the International Transport Workers’ Federation made multiple demands in regards to various payments and requested that the ship owners pay 6,480$ to the Seafarers International Welfare Fund.7The ITWF sued the plaintiffs after they recovered the money they gave to the fund. They believed they could sue due to the fact that they were acting under an immunity in s. 13 of the Trade Union and Labour Relations Act 1974. The House of Lords found that the defendants had no immunity and used economic duress in order to corner the plaintiffs, putting them in a position where they had to make those extra payments, hence the money was recoverable for the plaintiffs. Lord Diplock stated that “the financial consequences to the ship owners of the Universe Sentinelcontinuing to be rendered off-hire under her time charter to Texaco, while the blacking continued, were so catastrophic as to amount coercion of the ship owners’ will which vitiated their consent to those agreements and to the payments made by them to ITF.”8The importance of this case is shown as the pressure applied by the defendant was the main concern in the judgement. 6LawTeacher, “Outmoded or Even Redundant” November 2013,>, accessed 12-1-201871983 1AC 366House of Lords8Ibid. 17383995This made clear the way economic duress was used and how the mitigating of it leads to fairness between the parties of the contract.9In this sense, economic duress has proven itself to be a strong alternative to the notion of consideration. A disadvantage of the doctrine as an alternative however, is the fact that it is also relatively new, exposing it to potential loopholes and having a weak arsenal of precedence, which if it were strong would definitively make it a more reliable element in the law of contract.

10Yet another element in the law of contract that seems to be a strong alternative to the doctrine of consideration is promissory estoppel. It is a relatively justifiable doctrine that prevents one party from going back on a promise that is not supported by consideration.11It was developed in Central London Property Trust Ltd v High Trees House Ltd (1947).12An obiter statement made by Denning J stated, “In my opinion, the time has now come for the validity of such a promise to be recognized. The logical consequence, no doubt is that a promise to accept a smaller sum in discharge of a larger sum, if acted upon, is binding notwithstanding the absence of consideration”.

13Denning then adds that “this aspect was not considered in Foakes v Beer”. In hindsight, the doctrine of promissory estoppel seems to be a reliable and fairly strong alternative to the notion ofconsideration. However, its main weakness is seen to be that it is used “as a shield, not a sword”.14This means estoppel can only be used in acts of defense against the other party when said party is going back on a promise. However, if English Law were to adopt the 9John P. Dawson, “Economic Duress: An Essay in Perspective”, Michigan Law Review, Vol. 45, No.

3 (Jan., 1947), pp. 253-290, The Michigan Law Review Association,>, Accessed: 14-01-2018; page 282 10Ibid. 11Jill Poole, “Textbook on Contract Law” (2016 Edition, Oxford University Press, 2016)12Edwin W.

Patterson, “Columbia Law Review, Vol. 58, No. 7” (Nov., 1958), Columbia Law Review Association,, accessed: 12-12-2017, page 930 131947 KB 130High Court14Jill Poole, “Textbook on Contract Law” (2016 Edition, Oxford University Press, 2016)17383996estoppel method used in Australia, it can be used as an action, albeit, a sword.

In Waltons Stores (Interstate) Ltd v Maher(1988), where both parties agreed that Maher would demolish an existing building and build a new one in which Waltons would occupy. When 40% of the construction of the new building was done, Waltons withdrew from the plan and Maher brought action through promissory estoppel.15The court found that the element of urgency and Maher’s assumption that Walton’s execution of the promise was a formality made Walton’s conduct unconscionable and therefore was estopped from going back on the promise of completion.

16However, Brennan J has stated that even if the UK adopted Australia’s form of actionable promissory estoppel, it would serve a different purpose from the action of consideration as consideration protects the expectation interest of the party, whereas estoppel protects the reliance interest.17That makes it less of a viable option to replace the doctrine of consideration. A strong concern regarding the notion of consideration that has led to its constant debate of importance and abolishment, is the definition of the word; or rather the uncertainty that has arisen