'Intention to Create Legal Relations': A Contractual Necessity or An Illusory Concept
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Abstract
'Intention to create legal relations' forms the basic ingredient of any valid contract in many jurisdictions around the world. The paper argues that such requirement is neither required nor is purposeful if any particular jurisdiction has 'Consideration' as the basic requirement to prove the formation of validly formed contract. The paper postulates that 'consideration' in itself is, and should ideally be, indicative of such intention. Therefore, as far as common law countries are concerned, 'consideration' in itself should be capable of dealing with the intention of the parties and there should not be any separate requirement of proving an 'intention to create legal relation'. By natural corollary, the requirement to prove such 'intention' can be justified in countries where 'consideration' is not a requirement for a form- ing a valid and legally enforceable contract. The paper, while dealing with the proposed postulations, also deals with the difference in presumption with regard to such intention while dealing with contractual relations that arise in do- mestic set-up as differing from those arising in a commercial set-up.
- Cohen, “The Basis of Contract,” Harvard Law Review, Vol. 46, 1933, pp. 553, 575.
- D. Hume, “An Inquiry Concerning the Principles of Mo- rals,” In: C. Hendel, Ed., Hackett Pub-lishing Co., Indianapolis, 1957.
- M Chen-Wishart, “Con-tract Law,” Oxford University Press, Oxford, 2005, pp. 22.
- D. Kennedy, “From the Will Theory to the Principle of Private Autonomy: Lon Fuller’s “Consideration and Form”,” Columbia Law Review, Vol. 100, No. 1, 2000, pp. 94-175. doi:10.2307/1123557
- Rose and Frank Co. v J. R. Cromp-ton and Bros Ltd., 2 KB 261, 1923.
- Balfour v. Balfour, 2 KB 517, 1919.
- M. Freeman, “Contracting in the Haven: Balfour v Balfour Revisited,” Exploring the Boundaries of Con- tract, Dartmouth Publishing Group, Sudbury, 1996, pp. 75-77.
- E. Posner, “A Theory of Contract Law under Con-ditions of Radical Judicial Error,” 94 North-western University Law Review 749, 2000.
- S. Wheeler and J. Shaw, “Con-tract Law: Cases, Materials and Commentary,” Oxford Univer-sity Press, Oxford, 1994, pp. 150.
- S. Hedley, “Keeping Contract in Its Place —Balfour v Balfour and the Enforceability of Informal Agreements,” Oxford Journal of Legal Studies, Vol. 5, No. 3, 1985, p. 396. doi:10.1093/ojls/5.3.391
- M. Keyes and K. Burns, “Contract and the Family: Whither Intention,” Melboume University Law Review, Vol. 26, No. 3, 2002, p. 577.
- Merritt v. Merritt, 1 WLR 1211, 1970.
- Smith. v Hughs, LR 6 QB 597,1871.
- M. Chen-Wishart, “Objectiv-ity and Mistake: The Oxy- moron of Smith v Hughes,” In: J. Neyers, R. Bronough, S. G. A. Pitel, Eds., Exploring Contract Law, Hart Publishing, Oxford, 2009, Available at SSRN: http://ssrn.com/abstract=1551980
- Jones v. Padavatton, 1 WLR 328, 1969.
- Todd v. Nicol, SASR, 1957, pp. 72, 77.
- S. Hedley, “Keeping Contract in its Place: Balfour v. Bal- four and the enforceability of Informal agreements,” Ox-ford Journal of Legal Studies, Oxford University, Oxford, 1985, pp. 391, 408.
- S. Williston, “Williston on Contracts,” 3rd Edition, Rochester, New York, 1957.
- R. E. Barnett, “Contracts: Cases and Doctrine,” 4th Edi- tion, Aspen Publish-ers, Frederick, 2008.