The Essay offers a novel perspective on the ongoing debate concerning the consideration requirement. Scholarly critique of consideration often follows Lon Fuller’s canonical ‘Consideration and Form’, and focuses on alternative means to fulfill the three functions served by legal formalities. Building on psychological theory and based on an empirical study presented herein, the Essay presents a not yet recognized effect of contractual consideration on individuals’ perception of the value and attractiveness of objects. This effect of consideration – which I name the ‘evaluative function’ – is unique because, unlike the functions discussed by Fuller, no other legal formality can create it. The Essay then goes to discuss the implication of the evaluative function of consideration, identifying its beneficial and detrimental outcomes and arguing that the effects of the evaluative function offer a rationale for maintaining a consideration requirement for gifts and abolishing it for options agreements.
Somech, Ohad, What a Peppercorn Can Do: The Effect of Considerations on the Subjective Attractiveness of Objects (February 10, 2018). Mississippi Law Journal, forthcoming.