Consideration in the Common Law of Contracts: A Biblical-Theological Critique
Regent University Law Review, Vol. 18, No. 1, 2005
51 Pages Posted: 7 Mar 2006 Last revised: 18 Nov 2011
Date Written: November 16, 2011
Several years ago Bill Stuntz, reviewing Christian Perspectives on Legal Thought (Yale University Press 2001), observed how little radicalism and reaction appeared in most of its twenty-nine essays. As Stuntz put it, "[a]ll of these discussions are smart, sensible, delightfully well written, and resolutely middle-of-the-road". William J. Stuntz, Christian Legal Theory, 116 HARV. L. REV.1707, 1719 (2003) (book review). Stuntz eventually concluded that Christians ought to focus on relationships "instead of looking for the Christian theory of contracts . . . ." Id. at 1728.
As a Contracts professor who happens to be a Christian, I wondered if it were the case that the truths of Christian doctrine had nothing to do with contract doctrine. Given the New Testament ascriptions of cosmic lordship to Christ, wasn't it possible that the claims of orthodox Christianity, if true, should reach even to the mundane rules of contract law?
My article argues that Christian doctrine (or, more accurately, several Christian doctrines) does connect with at least one contract doctrine − consideration. While the contours of consideration have come under sustained analysis from various perspectives over recent decades, by drawing on three widely accepted teachings of various Christian traditions (the Creator-creature distinction, the covenantal structure of human understanding, and the reality of the law of God), I bring the doctrine of consideration (the rule that, by and large, courts should enforce only those promises that are part of a bargained-for exchange) under theological scrutiny and conclude that it is wanting. Drawing again on these doctrines as well as historical and contemporary perspectives on promissory liability I conclude by advancing a restated alternative to contemporary consideration doctrine.
Keywords: contract, consideration, Christian, doctrine
JEL Classification: K12
Suggested Citation: Suggested Citation