ABSTRACT
However, even before the legislative intervention, the English courts were recognising that multi-party commercial transactions must be treated with a certain flexibility. Admittedly, the problems of the privity and consideration rules could, anyway, often be avoided by recourse to other remedial or substantive doctrines. For example, bailment (cf Chapter 8 § 3(c)),77 estoppel (Chapter 5 § 1(c)) or even, perhaps, the defence of consent in tort (volenti non fit injuria) (Chapter 13 § 3(a)) could be used on occasions to avoid privity problems. And so the hardships created in the commercial world by English contract law ought not to be exaggerated. Yet, the main difficulty with regard to consideration was that it has always attached itself to the promise rather than to the bargain as a whole and this atomistic approach to the analysis of transactions could cause particular problems in international trade and commerce agreements. There was always the danger that one particular promise may turn out, in isolation, to be devoid of consideration.
