Intention to create legal relations

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The basic principles of contract

A Jolly Contrarian tiptoe through the tulips of consensus™


Formation: capacity and authority · representation · misrepresentation · offer · acceptance · consideration · intention to create legal relations · agreement to agree · privity of contract oral vs written contract · principal · agent
Interpretation and change: governing law · mistake · implied term · amendment · assignment · novation
Performance: force majeure · promise · waiver · warranty · covenant · sovereign immunity · illegality · severability · good faith · commercially reasonable manner · commercial imperative · indemnity · guarantee
Breach: breach · repudiation · causation · remoteness of damage · direct loss · consequential loss · foreseeability · damages · contractual negligence · process agent
Remedies: damages · adequacy of damages ·equitable remedies · injunction · specific performance · limited recourse · rescission · estoppel · concurrent liability
Not contracts: Restitutionquasi-contractquasi-agency

Index — Click ᐅ to expand:
Tort

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But I never thought it would come to this....

There is some debate on whether the intention to create legal relations is a separate ingredient in a legally binding contract, or really just an evaluative description of what all the other ingredients (offer, acceptance and consideration) add up to.

Express contracts: Their worshipful honours have held[1] that in an “express” contract or an “ordinary commercial transaction”, the burden of proof is on she who alleges the absence of an intention (but really? if, in actually signing a legal agreement, you did not intend to create legal relations, then what on earth did you think you were doing?)

Implied contracts: Where offer and acceptance of a contract can only be implied from conduct, then there are authorities[2] that the person alleging the contract has the burden of proof. But this seems to be no more than a burden of proving offer and acceptance in the first place.

And a young Mr Justice Denning, off the record in the HighTrees case, thought that the intention to be bound by a promise, whether or not accompanied by consideration, might have some value, at least on a defensive tack, though it is hard to find support for that seemingly sacrilegious view.

So while there is some judicial authority that the intention to create legal relations is a separate thing, but dammit, that legal authority, however binding it might be, is wrong. In this commentator’s irrelevant, jaundiced view.

As the maxim has it, anus matronae parvae malas leges faciunt.

This is a contrarian view, by the way.

See also

References

  1. Edwards v Skyways [1964] 1WLR 349Let me Google that for you
  2. The Aramis [1989] 1Lloyd’sRep 213[1]