Oman’s Random Thoughts on Consideration

Nate Oman (William & Mary) asks: why bother with consideration to determine which promises are enforceable?  He argues: why not enforce all promises, no matter how trivial, and let litigation costs serve as the gatekeeper for which promises get enforced – it simply isn’t worth the expense of seeking to enforce trivial claims (like the broken promise to have lunch).  Interesting thoughts.  But, what about the justification of consideration as a recognition of the solemnity of making the promise?  I realize that consideration often does not serve this stated purpose (especially not a mere peppercorn); however, to the extent non-trivial (high value) promises would be binding in court regardless of consideration, shouldn’t the law have some mechanism to give the promisor pause?  Bring back the seal!?!

[Meredith R. Miller]