Note, The Peppercorn Theory of Consideration and the Doctrine of Fair Exchange in Contract Law, 35 Colum. L. Rev. 1090, 1090-1091 (1935)

NOTE, THE PEPPERCORN THEORY OF CONSIDERATION AND THE DOCTRINE OF FAIR EXCHANGE IN CONTRACT LAW, 35 Colum. L. Rev. 1090, 1090-1091 (1935): "Pervading the complex field of fine-spun theories of consideration are two inconsistent ideas. On the one hand, consideration is said to be only a form; on the other, it assures a fair exchange. In substantiation of the first view and in virtually absolute negation of the second stands the age-old formula that mere inadequacy of consideration is never a bar to enforcement of a contract. Although frequently subject to evasion this general formula has gone virtually unchallenged by the courts and has met with only occasional criticism by the writers.

"Justification for this purported refusal to supervise the ethics of the market place is sought in doctrines of laissez-faire. Aside from the some- what anachronistic character of the argument in a period of rising recognition of the social interest in 'private business,' it is clear that there has been constant judicial delimitation, in the law of fraud and duress, of the permissible pressures to be used in the bargaining process. In general, the freedom from regulation postulated by laissez-faire adherents is demonstrably non-existent and virtually inconceivable. Bargaining power exists only because of government protection of the property rights bargained, and is properly subject to government control. Undaunted, the courts urge that their inability to compare values justifies the inadequacy rule. While the complexity of the exchange process renders a precise standard utopian, the total inability is belied in practice. Enforcement has been denied to contracts involving unfair disparity. Even more refined comparison is attempted by those jurisdictions which recognize 'inadequacy' as a bar to specific performance but will decree cancellation only for 'gross inadequacy.' Valid logical or practical opposition to judicial enforcement of fair exchange has thus not been offered. Further, however, the weight of the mass of pronouncements supporting the rule that inadequacy is immaterial is substantially weakened by an examination of the cases."