Vanderbilt Law Review

First Page



The doctrine of consideration serves several functions. For example, it serves a cautionary function because it helps ensure deliberateness. Often, promises to make gifts are based on emotion, surges of gratitude, or impulses of display.' A donative promisor tends to look primarily to the promisee's interests rather than the promisor's own interests. The commercial-gift dichotomy satisfies the cautionary function better than the doctrine of consideration because it distinguishes between transactions based on self-interest, in which the promisor can be presumed to self-protect, and transactions based on altruism, in which the promisor is thinking more about the donee's interests than his own. The law can protect the promisor's interests in altruistic transactions.

Consideration also supposedly serves a channeling or "earmarking" function, helping to distinguish between enforceable promises and mere expressions of intent."' A channeling function is served when the "populace is made aware that the use of a given device will attain a desired result.' Because most people do not know about the doctrine of consideration, it is a very poor channeling device. The commercial-gift dichotomy serves the channeling function better because it corresponds more closely to people's expectations about which promises are binding. Contract law is designed to protect expectations, and people generally expect that commercial contracts are legally binding but that gift promises are not. People commonly understand that commercial promises are serious and are normally binding commitments. The doctrine of consideration relieves people of promises that everyone expected to be binding and therefore is underinclusive.