One-sided contract modifications and the requirement of consideration

• Main Author: Harder, Sirko
• Format: Article in Journal/Newspaper
• Language: English
• Published: Lloyds of London Press Ltd 2019
• Subjects: K0600 Private law; KD0051 England and Wales; KE Law of Canada; KF Law of the United States; KL-KWK Asia and Eurasia; Africa; Pacific Area; and Antarctica; Canada; Pacific; Antarc*; Antarctica
• Online Access: http://sro.sussex.ac.uk/id/eprint/80914/; http://sro.sussex.ac.uk/id/eprint/80914/1/S%20Harder%20%5B2019%5D%20LMCLQ%20138-161.pdf

The parties to an existing contract may agree that the obligations of one party (but not of the other) are to be modified. For a long time, one-sided contract modifications were considered unenforceable for lack of consideration. It is now widely recognised that this approach fails to give effect to the parties’ autonomy and intention. Two alternative approaches have emerged across the common law world. One approach is to find consideration in a practical benefit obtained by the promisor. The other approach is to abolish the consideration requirement for contract modifications. This article investigates the merits of both alternative approaches.