Evaluation of intention to create legal relations Flashcards
1
Q
Summarise evaluation points
A
- Objective approach so parties won’t lie or disagree.
- Two presumptions are not very flexible.
- Business contracts are fair due to the need for certainty.
- Business contracts can be rebutted which leads to uncertainty
- Fair in domestic/social cases because it could open the floodgates
- Can be rebutted leading to uncertainty
- Professor Hoppel and others argue that we don’t need intention
2
Q
Objective approach so parties won’t lie or disagree.
A
- Subjective approach would lead to disagreement as they are in dispute and they may even lie.
3
Q
Two presumptions are not very flexible.
A
- Can be difficult to determine if it was domestic or business and may be referred to as a ‘half-way house’
- Sadler v Reynolds - ‘commercial transaction and social exchange’ - business agreement making it legally binding
4
Q
Business contracts are fair due to the need for certainty
A
- More formal setting
- Usually involve large amounts of money
- Edwards v Skyways - ‘ex gratia’
5
Q
Business contracts can be rebutted which leads to uncertainty
A
6
Q
The presumption in social / domestic cases is fair
A
- Could open the floodgates which leads to excessive court dates which is socially undesirable.
- Wilson v Burnett where a casual one off agreement led to no intention as it was purely social
7
Q
Social agreements can be rebutted
A
- Makes it difficult for lawyers to advise clients on potential outcomes of cases
- Parker v Clarke where it was rebutted due to the one party giving up accommodation for the agreement.
8
Q
The need to prove intention for a contract is deemed unnecessary
A
- Professor Hoppel and others argue that we should get rid of intention all together
- Other countries don’t use the idea of intention
- Merritt v Merritt where an agreement was made in writing so amounted to intention
- Intention makes it more subjective as up to the jury to decide
