Tuesday, February 7, 2006
The doctrine of consideration has received treatments from almost every angle over the past hundred years or so. Now Scott Pryor (Regent) offers a Christian take on the doctrine in Consideration in the Common Law of Contracts: A Biblical-Theological Perspective, 18 Regent U. L. Rev. 1 (2005-06). Here’s the introduction:
An approach to the study of the law of contracts must start somewhere. Some casebooks on contracts start with a very brief historical review and proceed directly to cases. A number start with the formation of contracts; others begin with remedies for breach of contract. One even begins with consideration. Sprinkled throughout most casebooks are some discussions of why contracts should be enforced, usually in the form of notes following cases or short excerpts from law review articles. Even those discussions, however, rarely deal with questions of the worldview that legitimates coercive state enforcement of contracts. And to my knowlege, non discuss questions of theology in relation to the law of contracts.
This article will discuss one aspect of contracts law -- consideration -- in light of biblical criteria. Such a move requires some preliminary groundwork. Application of biblical teachings requires more than citing a series of proof-texts. And application of biblical doctrine includes more than the Bible. I will thus begin by describing three Christian doctrines that are particularly relevant to legal analysis. I will then follow with three perspectives that demonstrate how to apply the doctrines as tools for legal criticism. With these foundations, I will then move on to address consideration in two parts: What purpose does it serve? And how should courts draw its boundaries? I will cite very few cases. This is primarily a work of critique; I am certainly not trying to plot a curve on the scattershot of judicial decisions. But there is also some theory here; I believe Christianity has something to say about what the law should be.