ICLR Flashcards
Maple Leaf provides that the parties’ intentions shall be judged objectively. What is the exception to this?
Attrill – if one party actually knows that the parties lacks ICLR he is not entitled to assert that based on an objective analysis the parties did have ICLR
What is the position on ICLR for commercial transactions?
Edward - there is a presumption, rebuttable only by clear evidence, that parties to commercial transactions ICLR
Attrill
If a term is introduced into a pre-existing contractual r/s the presumption that the term is intended to be legally binding is stronger
Esso Petroleum (World Cup coin in return for petrol)
Since the offer was calculated to produce commercial advantage for D, it was undesirable to allow D to claim it was a mere puff; ICLR found
How may commercial parties frame their correspondence to avoid a finding of ICLR?
Presumption may be rebutted by express stipulation (e.g. Rose and Frank) but this is a matter of construction (Edwards – mere phrase “ex gratia” insufficient)
What is the position on ICLR for domestic transactions? What is the justification given for this?
The presumption is against ICLR, w/ the onus of proving ICLR lying on the party alleging the existence of the contract. (Balfour)
Atkin LJ, who based his judgment on ICLR, identified the basis of the presumption as public policy (floodgates + the undesirability of judicial intervention in family relationships)
What is the scope of Balfour?
It applies outside of the marital context to familial r/s (e.g. parental r/s in Padavatton) as well as to informal social agreements (Coward)
Merrit
The Balfour presumption may be rebutted where the parties have separated at the time the agreement was made, for the parties “then bargain keenly…do not rely on honourable understandings…it may safely be presumed they ICLR”
What is the r/s between ICLR and consideration?
It is clear that the issues may often arise on the same facts, for Duke LJ in Balfour based his judgment on lack of consideration and Atkin LJ on ICLR.
What is the scope of application of Balfour?
It applies outside of the marital context to familial r/s (e.g. parental r/s in Padavatton) as well as to informal social agreements (Coward).
What is the r/s between ICLR and consideration?
It is clear that the issues may often arise on the same facts, for Duke LJ in Balfour based his judgment on lack of consideration and Atkin LJ on ICLR. However Atkin LJ emphasised that ICLR was a separate hurdle from consideration and this has been the approach in subsequent cases.
Snelling
The Balfour presumption may be rebutted if the r/s between the parties is domestic but the agreement is a commercial one (running of family business)
Parker v Clark
The Balfour presumption may be rebutted if C has acted to his detriment in reliance upon the agreement concluded between the parties (in the sense that had C thought that D was not legally bound to fulfil his side of the bargain C would not have done the detrimental act in question).
What are the two key differences between ICLR and intention to contract?
- ICLR presumes the presence of agreement, ItC is a precursor to agreement
- It is for C to prove that a contract has been concluded, but if he satisfies this BoP, the onus is on D to prove lack of ICLR (at least for commercial context).
Baird Textile Holdings
ICLR is normally presumed in the case of an express or apparent agreement evincing an intention to contract but in the case of implied contracts the BoP of showing ICLR remains on C.
