Definition
A consideration that is contrary to good morals and therefore legally invalid. When a contract rests on an immoral consideration — meaning the thing promised or exchanged is itself morally offensive or socially condemned — courts treat the consideration as void and the contract as unenforceable. The doctrine operates as a subspecies of the broader rule against illegal consideration, but the two are distinct: a consideration may be immoral without being strictly prohibited by statute.
Classic examples drawn from historical sources include agreements predicated on future illicit cohabitation, payment for the creation or distribution of obscene or libellous material, and contracts whose subject matter is tied to sexual immorality or the exploitation of vice.
Common Language
Modern common usage (Wiktionary): "Immoral" means not conforming to accepted standards of morality; unethical or wicked. "Consideration" in common speech means thoughtful attention, regard, or a payment made in exchange for something.
Historical common usage (Webster's 1913): "Immoral" — not moral; inconsistent with rectitude, purity, or good morals; contrary to conscience or the divine law. "Consideration" — the act of considering; careful thought; also, a recompense or equivalent.
The gap matters: in ordinary English, pairing these two words suggests mere ethical disapproval of a payment. In contract law, the phrase is a term of art with doctrinal consequences — an immoral consideration does not simply make a contract ethically questionable; it renders the contract void or voidable ab initio. The legal question is not whether the court disapproves of the morality of the exchange, but whether the consideration itself is so fundamentally offensive to public morals that courts will refuse to enforce it.
Common Confusion
Immoral consideration is frequently conflated with illegal consideration. The distinction is meaningful. Illegal consideration involves a promise or performance that violates a statute or is criminally prohibited; the contract fails because the law directly forbids the act. Immoral consideration involves a promise or performance that courts deem offensive to public morals or social policy, even where no specific prohibition exists. In practice the categories overlap heavily, but historical sources and common law courts treated them separately: a contract for future illicit cohabitation, for example, might be condemned as immoral without being a crime in every jurisdiction.
Immoral consideration also differs from inadequate consideration. Inadequacy refers to a consideration of low value relative to what is exchanged — courts generally do not police adequacy. Immorality, by contrast, strikes at the character of the consideration itself, not its quantity.
Why It Matters in Research
Researchers working in the Law Mind corpus should understand that the concept of immoral consideration is highly time-sensitive. What counted as immoral in 19th- and early 20th-century cases — cohabitation outside marriage, materials deemed obscene by Victorian standards, certain gambling arrangements — may not align with modern judicial sensibilities or contemporary statutory frameworks. Cases decided under this doctrine before the mid-20th century often reflect social attitudes that courts today would frame differently, if they reached the same result at all.
The doctrine is also jurisdictionally unstable. Courts in different states applied the label "immoral" inconsistently, and the line between immorality and illegality was drawn differently depending on local statute and custom. A researcher using historical case reporters must be alert to the fact that "immoral consideration" could serve as a catch-all for any contract a court wished to void on public policy grounds, even when the better doctrinal category would have been illegal consideration or violation of public policy.
In modern sources, the phrase "immoral consideration" has largely been absorbed into the broader rubric of contracts void as against public policy. Researchers searching contemporary secondary sources may need to pivot to that framing to locate relevant material. Conversely, researchers working in 19th-century equity and common law sources will find the term used with greater frequency and specificity than modern treatises acknowledge.
Bouvier's references to Burrow's Reports and Espinasse's Reports place the doctrine firmly in English common law origins. These citations are to real historical reporters but are pre-codification English authorities; their weight in American jurisdictions was always persuasive rather than binding, and researchers should not assume uniform adoption.
Historical Dictionary Support
Both Black's and Bouvier's define immoral consideration identically at their cores: a consideration contrary to good morals, rendering the contract void. The agreement between the two sources on the basic rule is complete.
Bouvier's is meaningfully richer, supplying illustrative categories through historical case references: agreements for future illicit cohabitation, agreements for the value of libellous or obscene pictures, and contracts for printing a libel. These examples reveal that 19th-century courts applied the doctrine broadly across sexual morality, defamation, and obscenity contexts. Black's states the rule without illustration.
Neither source engages with the question of how courts should determine what "good morals" requires — a significant doctrinal gap that later scholarship addressed through the public policy doctrine. Neither dictionary acknowledges the tension between the void-contract rule and cases where courts permitted partial enforcement or restitutionary relief to an innocent party. Researchers should not rely on the historical dictionary entries alone to understand the full doctrinal complexity; the entries state the rule at its most categorical.
Jurisdictional Note
American courts have largely retired the specific phrase "immoral consideration" in favor of public policy analysis, but the underlying doctrine survives. In states with detailed statutory frameworks governing contracts — particularly those addressing sexual services, gambling, or obscenity — the applicable analysis will be statutory rather than common law morality. Researchers should check whether a jurisdiction has codified public policy limitations on contract enforcement before applying common law immoral consideration doctrine.
Encyclopedia Cross-Reference
Contracts — Adequacy of Consideration and Nominal Consideration (The Law Mind Contracts & Commercial Law Encyclopedia)
Contracts — Past Consideration and Moral Obligation (The Law Mind Contracts & Commercial Law Encyclopedia)