Contract

Consideration - formalism + modern practice

The doctrine’s formalism is increasingly difficult to reconcile with the realities of modern commercial practice

Consideration - provides formal threshold

Consideration provides a formal threshold for enforceability, even if that threshold is conceptually thin

Intention - presumption-based approach

The presumption-based approach prioritises certainty but risks mischaracterising the parties’ actual intentions

Penalty clauses - Cavendish shifts focus

Cavendish v Makdessi shifts the focus from punishment to legitimate interest, but introducers significant uncertainty

Penalty clauses - Legitimate interest open-ended

The concept of legitimate interest is inherently open-ended, granting courts wide discretion

Misrepresentation - balance protection with certainty

The law struggles to balance protection of reliance with the need for transactional clarity

Damages - monetised approximation

Damages provide a monetised approximation, not true performance

Damages - not perfect, but specific performance

Damages aren’t perfect, but specific performance is not a universally better alternative