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The Dignity of CommerceMarkets and the Moral Foundations of Contract Law$
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Nathan B. Oman

Print publication date: 2017

Print ISBN-13: 9780226415529

Published to Chicago Scholarship Online: September 2017

DOI: 10.7208/chicago/9780226415666.001.0001

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(p.89) Chapter Five Consideration
The Dignity of Commerce

Nathan B. Oman

University of Chicago Press

The doctrine of consideration has been widely criticized by contract law theorists and incoherent, normatively vacuous, and pernicious in its consequences. While there is much truth to these critiques, the market argument suggests that the doctrine of bargained for consideration rests on an important insight, namely that the commercial exchange lies at the heart of contract law. Accordingly, this chapter argues that in place of the current doctrine of consideration, all agreements made in furtherance of commerce should be presumptively enforceable as well as exchanges made outside established markets. Such a rule would avoid the pitfalls of current doctrine, while retaining the basic insight of that doctrine. It would also imply the rejection of the current doctrine of promissory estoppel.

Keywords:   consideration doctrine, consideration, promissory estoppel, bargain

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