Define: Bargain Theory Of Consideration

Bargain Theory Of Consideration
Bargain Theory Of Consideration
Quick Summary of Bargain Theory Of Consideration

The concept of consideration in the bargain theory states that when a promise or performance is exchanged for another promise, it is considered consideration for that promise. This theory forms the foundation for all bilateral contracts. For instance, if John promises to pay £500 to Mary in return for her promise to deliver a painting, John’s promise to pay $500 serves as consideration for Mary’s promise to deliver the painting. This theory plays a crucial role in determining the legal enforceability of a contract. If there is no consideration present, the contract is deemed invalid.

What is the dictionary definition of Bargain Theory Of Consideration?
Dictionary Definition of Bargain Theory Of Consideration

The concept of consideration in the form of a bargain theory suggests that when two individuals make a pledge to one another and each pledge is made in return for the other, both pledges are deemed valuable. This is what renders a contract legally enforceable. It can be likened to exchanging toys with a friend; if you agree to give them your toy in exchange for theirs, both toys hold value, and the exchange is equitable.

Full Definition Of Bargain Theory Of Consideration

The Bargain Theory of Consideration is a fundamental principle in contract law, primarily developed within the common law system, including British jurisprudence. This theory serves as a cornerstone in determining the enforceability of agreements, stipulating that for a contract to be legally binding, there must be an exchange of promises or acts constituting a ‘bargain’ between the parties. This essay explores the origins, principles, and implications of the Bargain Theory of Consideration, along with its application in British contract law.

Historical Context

The concept of consideration has evolved significantly over centuries, originating in the early common law period. In medieval England, the idea of consideration emerged from the need to differentiate enforceable agreements from mere promises. Initially, the courts required a quid pro quo (something for something) to enforce a promise, laying the groundwork for the modern notion of consideration.

By the 17th century, the doctrine of consideration had become more formalized. In the seminal case of Thomas v. Thomas (1842), the courts articulated that consideration must be something of value in the eyes of the law, whether it be an act, forbearance, or promise thereof. This case underscored the necessity for a bargain or exchange, which remains central to the doctrine today.

Principles of the Bargain Theory of Consideration

The Bargain Theory of Consideration is predicated on the idea that a contract is enforceable only if there is an exchange of value between the parties. This exchange, or ‘bargain’, distinguishes binding contracts from gratuitous promises. The key elements of this theory are:

  • Mutual Assent: Both parties must agree to the terms of the contract, indicating a mutual understanding and acceptance of the exchange.
  • Exchange of Value: There must be a reciprocal exchange, where each party provides something of value. This could be money, goods, services, or a promise to act or refrain from acting in a certain way.
  • Legal Sufficiency: The consideration must be sufficient in the eyes of the law. This does not mean it has to be adequate or equal in economic value, but it must be something of legal value.

Application in British Contract Law

In British contract law, the Bargain Theory of Consideration is a crucial doctrine used to assess the validity of contracts. The leading case of Currie v. Misa (1875) defines consideration as “some right, interest, profit or benefit accruing to the one party, or some forbearance, detriment, loss or responsibility given, suffered or undertaken by the other.” This definition encapsulates the essence of the bargain requirement.

Requirements for Valid Consideration

For consideration to be valid under British law, it must satisfy several criteria:

  • It must move from the promisee: The party who wishes to enforce the contract must provide the consideration. This is illustrated in Tweddle v. Atkinson (1861), where the court held that only parties who have provided consideration can sue on the contract.
  • It must not be past consideration: Past consideration, which refers to acts or forbearances that occurred before the promise was made, is generally not valid. The case of Re McArdle (1951) demonstrates this principle, where a promise to pay for work already completed was deemed unenforceable.
  • It must be sufficient but need not be adequate: The consideration must have some value, but it does not need to match the value of what is received in return. This is illustrated in Chappell & Co Ltd v. Nestle Co Ltd (1960), where chocolate wrappers were deemed sufficient consideration despite their minimal economic value.

Exceptions and Modifications

While the Bargain Theory of Consideration is a robust doctrine, there are notable exceptions and modifications within British law:

  • Promissory Estoppel: This equitable doctrine can enforce certain promises without consideration. In Central London Property Trust Ltd v. High Trees House Ltd (1947), Lord Denning established that if a party relies on a promise to their detriment, the promisor may be estopped from reneging on that promise.
  • Part Payment of Debt: Under the rule in Pinnel’s Case (1602), part payment of a debt is not valid consideration for the discharge of the entire debt. However, the doctrine of promissory estoppel can sometimes mitigate this harsh rule, as seen in Hughes v. Metropolitan Railway Co (1877).
  • Third Party Consideration: The Contracts (Rights of Third Parties) Act 1999 allows third parties to enforce contractual terms in certain circumstances, thus modifying the strict requirement that consideration must move from the promisee.

Comparative Perspective

The Bargain Theory of Consideration is not unique to British law but is a prevalent concept in many common law jurisdictions. In the United States, for instance, the Restatement (Second) of Contracts emphasizes the need for a bargain in similar terms. However, the U.S. legal system sometimes adopts a more flexible approach, allowing for greater recognition of reliance interests through doctrines like promissory estoppel.

In contrast, civil law jurisdictions, such as those following the French or German legal systems, do not employ the concept of consideration. Instead, they focus on the intentions of the parties and the formalities of the agreement. This difference highlights the unique role that consideration plays within the common law tradition.

Criticisms and Reforms

Despite its foundational status, the Bargain Theory of Consideration has faced criticism. Some argue that the requirement for consideration can lead to unjust outcomes, particularly where one party has relied on a promise to their detriment. The rigidity of the doctrine can sometimes undermine the fairness and equity that the law seeks to achieve.

Reformers have proposed various solutions to address these concerns. One suggestion is to expand the role of promissory estoppel, allowing it to serve as a more comprehensive substitute for consideration. Another proposal is to adopt a broader definition of consideration that better accommodates modern commercial practices and the realities of contractual relationships.


The Bargain Theory of Consideration remains a pivotal element of British contract law, underpinning the enforceability of agreements and distinguishing binding contracts from mere promises. While the doctrine has evolved over time and faces ongoing scrutiny, its core principles continue to shape the legal landscape. Understanding the nuances of this theory is essential for navigating the complexities of contract law and ensuring that agreements are formed on a solid foundation of mutual exchange and legal sufficiency.


  • Thomas v. Thomas (1842), 2 QB 851.
  • Currie v. Misa (1875) LR 10 Ex 153.
  • Tweddle v. Atkinson (1861), 1 B & S 393.
  • Re McArdle (1951), Ch. 669.
  • Chappell & Co. Ltd. v. Nestle Co. Ltd. (1960) AC 87.
  • Central London Property Trust Ltd v. High Trees House Ltd (1947) KB 130.
  • Hughes v. Metropolitan Railway Co. (1877) 2 App Cas 439.
  • Pinnel’s Case (1602) 5 Co Rep 117a.
  • Contracts (Rights of Third Parties) Act 1999.
Bargain Theory Of Consideration FAQ'S

The Bargain Theory of Consideration is a legal principle that states that for a contract to be valid, there must be a mutual exchange of promises or something of value between the parties involved.

Consideration can be anything of value, such as money, goods, services, or even a promise to do or refrain from doing something.

Yes, consideration is a fundamental requirement for the formation of a legally binding contract. Without consideration, a contract may be deemed unenforceable.

Yes, consideration does not have to be of substantial value. Even a nominal or minimal amount can be considered sufficient as long as there is a mutual exchange of promises.

Yes, consideration can be in the form of a promise. For example, if Party A promises to deliver goods to Party B, and Party B promises to pay for those goods, both promises constitute consideration.

No, past consideration is generally not considered valid in the Bargain Theory of Consideration. Consideration must be given in exchange for a promise or performance in the present or future.

No, consideration must be exchanged between the parties who are directly involved in the contract. It cannot be exchanged with third parties.

No, consideration must be a mutual exchange of promises or something of value between the parties involved. It cannot be a benefit to only one party.

No, a promise to do something that a party is already legally obligated to do cannot be considered valid consideration. It must involve a new promise or performance.

Yes, consideration can be waived or modified after the formation of a contract if both parties agree to the changes. However, such modifications should be supported by new consideration to ensure the enforceability of the modified contract.

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This site contains general legal information but does not constitute professional legal advice for your particular situation. Persuing this glossary does not create an attorney-client or legal adviser relationship. If you have specific questions, please consult a qualified attorney licensed in your jurisdiction.

This glossary post was last updated: 7th June 2024.

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