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The Role of Consideration in Contract Law

Introduction to Consideration in Contract Law

Understanding contract law is pivotal for anyone involved in legal agreements, be it individuals or businesses. At the heart of contract law lies the concept of 'consideration', a fundamental element essential for the formation of a legally binding contract. While the principles of contract law are universal, the nuances can vary from one jurisdiction to another. In Australia, like in many common law countries, the concept of consideration plays a crucial role in determining the validity of a contract.

Understanding Consideration: The Basics

What is Consideration?

Consideration in contract law refers to something of value that is exchanged between the parties involved in a contract. It can be an act, a forbearance, or a promise to do or not do something. The Australian legal system, following common law principles, requires that a contract must have consideration to be enforceable, except in special circumstances. The landmark case of Currie v Misa (1875) defined consideration as "some right, interest, profit or benefit accruing to one party, or some forbearance, detriment, loss or responsibility given, suffered or undertaken by the other". This definition, though established in the UK, is equally revered in Australian contract law.

Characteristics of Consideration

Consideration must be sufficient but need not be adequate. This means the value of consideration is not measured in terms of its economic equivalence to the promise made but must be of some value in the eyes of the law. For example, in Thomas v Thomas (1842), the court upheld a contract where a widow was allowed to stay in her deceased husband’s house for a nominal annual rent of £1, emphasising that consideration must be sufficient, not necessarily equivalent.

Differentiating Consideration from Gifts

A distinctive feature of consideration is its difference from a gift. A promise to give a gift is not enforceable as a contract because it lacks consideration – there is no exchange of value. Australian courts have consistently upheld this principle, distinguishing between contractual obligations and gratuitous promises.

Types of Consideration

Executed vs. Executory Consideration

In Australian contract law, consideration is classified as either executed or executory. Executed consideration occurs when the promise is made in exchange for an act. For instance, in Carlill v Carbolic Smoke Ball Company, the plaintiff's act of using the smoke ball as per the instructions was executed consideration. On the other hand, executory consideration involves a promise in return for a promise, often seen in bilateral contracts.

Present, Past, and Future Consideration

Consideration can also be present, past, or future. Present consideration is something that is done at the time of the contract. Past consideration, on the other hand, is an act done before the promise was made and is generally not valid consideration under Australian law, as seen in the case of Roscorla v Thomas. Future consideration involves a promise to do something in the future.

Consideration and Contract Formation

Role in Contract Validity

Consideration is vital for the validity of a contract in Australia. Without it, a contract may be deemed void. The emphasis is on the presence of a bargained-for exchange where each party receives a benefit or suffers a detriment.

Legal Requirements for Consideration

The legal requirements for consideration in Australia include adequacy (though not economic equivalence), legality, and possibility. The consideration must be legally possible and not against public policy. Additionally, it should not be something that one is already legally obliged to do.

Bargained-for Exchange

The concept of a bargained-for exchange is essential in Australian contract law. It stipulates that consideration must involve something that is bargained for and given in exchange for the promise. This principle ensures that each party has something at stake, creating a mutual obligation that is the essence of a contractual agreement.

Exceptions to the Consideration Requirement

Situations Where Consideration is Not Necessary

In certain situations, consideration is not necessary for a contract to be valid. These include contracts made under a deed or seal, which are still recognised in some Australian jurisdictions. Additionally, statutory exceptions exist where certain types of contracts are enforceable without consideration, such as certain promises in writing or contracts governed by specific statutes.

Promissory Estoppel in Australian Law

The doctrine of promissory estoppel is an important exception to the consideration requirement in Australian contract law. This principle, which emerged from the High Court's decision in Waltons Stores (Interstate) Ltd v Maher, prevents a party from going back on a promise that the other party has relied upon to their detriment, even if there is no consideration.

Contracts Under Seal

Contracts under seal, also known as deed contracts, are another exception to the consideration requirement. In certain Australian jurisdictions, these contracts are binding even without consideration, provided they are properly executed and witnessed. This formality lends these contracts a special status in law, reflecting their historical significance.

Challenges and Criticisms of Consideration

Common Critiques

Despite its foundational role, the doctrine of consideration in Australian contract law has faced criticism. Some legal scholars argue that it complicates contract formation without adding substantial value. They contend that the requirement of consideration can sometimes lead to unjust outcomes, particularly in cases where parties have relied on promises that are not supported by consideration.

Practical Challenges

Determining what constitutes adequate consideration can be a challenge. The Australian legal system has seen cases where the sufficiency of consideration has been contentious, making it a grey area in contract negotiations and disputes. The courts often have to balance the principle of freedom of contract with the need to prevent exploitation or unfairness.

Comparative Analysis with Other Legal Systems

Comparatively, the consideration doctrine in Australian law differs significantly from civil law systems, where the concept is either absent or differently construed. This difference highlights the unique approach of common law countries, including Australia, to contract formation and enforcement.

Recent Developments and Trends in Consideration

The landscape of contract law, including the doctrine of consideration, is constantly evolving. In Australia, recent legal developments have influenced how consideration is perceived and applied, especially in the digital age.

Changes in Legal Interpretation

Australian courts have progressively adapted the traditional principles of consideration to suit contemporary needs. This includes recognising non-traditional forms of consideration, especially in the context of digital contracts and services. The rise of digital agreements has challenged conventional notions, prompting the courts to interpret consideration in a more flexible manner.

Impact of Digital Contracts and E-Commerce

The digital revolution has significantly impacted contract law. Online contracts, often formed without traditional negotiations, have led to questions about the adequacy and evidence of consideration. Australian courts have been adapting to these changes, ensuring that the principles of contract law remain relevant in the e-commerce era.

Future Directions and Potential Reforms

Looking forward, the concept of consideration in Australian law may undergo further changes to accommodate emerging trends in contract formation and execution. This could involve reassessing the necessity of consideration in certain types of contracts or redefining what constitutes valid consideration in the digital context.

Practical Implications for Businesses and Individuals

The doctrine of consideration has practical implications for both businesses and individuals engaged in contractual agreements.

Importance in Contract Negotiations

For businesses, understanding the nuances of consideration is crucial in negotiating and drafting contracts. It ensures that agreements are legally binding and enforceable. In the case of individuals, it helps in recognising their rights and obligations under a contract.

Ensuring Valid Consideration

To ensure that a contract has valid consideration, parties should ensure that what is exchanged is of some legal value and meets the requirements of legality and possibility. They should also be mindful that past consideration is generally not valid in Australian law.

Avoiding Common Pitfalls

One common pitfall in contract formation is assuming that a contract is valid without clear consideration. Parties should avoid vague or illusory promises and ensure that the terms of exchange are clearly defined and legally recognised.


The concept of consideration remains a cornerstone of contract law in Australia. While it has evolved over time, its fundamental role in validating and enforcing agreements remains unchanged. As we move forward, the doctrine of consideration will likely continue to adapt to the changing landscape of business and technology, maintaining its relevance in Australian law. For specific legal advice or assistance in understanding the nuances of consideration in contract law, individuals and businesses can consult experienced lawyers. One such firm is Arida Lawyers in Parramatta, known for their extensive experience in various aspects of contract law and their commitment to providing tailored legal solutions. Understanding the role and nuances of consideration is not just a legal necessity but a practical tool for navigating the complexities of contractual relationships in both personal and professional realms. As Australian contract law continues to evolve, staying informed and seeking professional guidance when necessary is paramount for anyone involved in contractual agreements.

This article provides general information relevant to our legal services. It is not legal advice and should not be relied upon as such. If you are seeking legal advice, you should contact us for a free initial consultation.

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