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22 Oxford U. Commw. L.J. 1 (2022)

handle is hein.journals/oxuclwj22 and id is 1 raw text is: OXFORD UNIVERSITY COMMONWEALTH LAW JOURNAL 2022, VOL. 22, NO. 1, 1-20 https://doi.org/1 0.1080/14729342.2021.2008137 Routledge Taylor & Francis Group More than a side-wind: rethinking the consideration requirement in Commonwealth contract law Fabien Gelinas and Zackary Goldford Faculty of Law, McGill University, Montreal, Canada ARTICLE HISTORY Received 11 January 2021; Accepted 16 November 2021 KEYWORDS Consideration; contract law; fairness; voluntariness; integrity of consent 1. Introduction It has been nearly 70 years since Lord Denning described the consideration requirement as a 'cardinal necessity of the formation of a contract,' one so 'firmly fixed' that it could not be 'overthrown by a side-wind.' But across the Commonwealth in the years that have since passed, the winds of change have been blowing, and the consideration requirement has been hollowed away bit by bit. Take, for example, the consideration require- ment in the context of contract modifications, which traces its roots perhaps most notably to the classic case of Stilk v Myrick.2 Courts have applied Stilk for hundreds of years and in so doing they have refused to enforce contract modifications that were not backed by fresh consider- ation, accepting that pre-existing legal duties cannot constitute fresh con- sideration. Yet in England, the Court of Appeal held in Williams v Roffey CONTACT Fabien Gelinas fabien.gelinas@mcgill.ca 'Combe v Combe [1951] 2 KB 215 (England and Wales Court of Appeal (EWCA)) 220. 2(1809) 2 Camp 317, 170 ER 1168 (Court of King's Bench (KB)). © 2021 Faculty of Law, Oxford University