Intention and the Law of Promise (L3) Flashcards
Legal presumptions re. intention to be legally bound.
- Onus of proof lies with the party trying to prove otherwise.
- Presumed NO intention in a social/domestic context e.g. family.
- Presumed intention in commercial contexts.
- “ex gratia” payments… Edwards v Skyways [1964] contrast with Wick Harbour Trs v The Admiralty 1921.
- “subject of contract”…. Stobo Ltd v Morrison’s (Gowns) Ltd 1949.
Intention to be legally bound: Approach of Scottish courts.
Robertson v Anderson 2003.
- “…. the critical issue is whether what was said by each party amounted to a serious undertaking of the kind to which the law attributes binding effect, or was, for example, merely light hearted banter between friends, or a statement of future intention of a non-binding character.”
Cf…. Baillie Estates Ltd v Du Pont (UK) Ltd 2010 SCLR 192.
What are gratuitous obligations?
Pacta nuda, only consent required.
What are onerous obligations?
Pacta vestita, counter-obligation.
What is the Scots law approach to gratuitous obligations?
Accepted, however there is a presumption against donation.
What are contracts?
- Require more than one party.
- Require agreement (consensus in idem).
- Usually onerous.
- Bilateral onerous obligations….
What are promises?
- Require only one party.
- Do not require agreement.
- Are inherently gratuitous.
- Unilateral gratuitous obligations…
How an obligation of promise arises:
Regus (Maxim) Ltd v Bank of Scotland [2011] CSOH 129.
“A promise acquires its obligatory nature at the moment at which it is made”.
Examples of promises.
Cheque guarantee card.
Bank letter of credit.
Option to purchase (Stone v MacDonald).
Keeping an offer open (Littlejohn v Hawden).
Regus Maxim: Promiser must intend to be legally bound.
- “A promise is binding only if the promiser’s own words are clear and unambiguous” (para 37).
ALSO
“If a promise is intended … as a final engagement, it is binding, but it is not binding if it is a mere expression of a probable intention which the promissory might or might not fulfil.” (Morton’s Trs (1899) L Kinnear).
Regus Maxim: No acceptance needed.
“Delivery to or acceptance by the promisee is not necessary to the constitution of a promise … though … the presence or absence of communication to the other party may be an adminicle of evidence in the question whether the statement amounts to a promise.”
Regus Maxim: But promise must be ‘delivered’ or communicated.
- Not necessarily to promisee.
- Could be to a third party.
- Promisee may not yet exist.
Regus Maxim: Promise cannot be revoked.
“It is irrevocable, unlike an offer, which may be withdrawn at any time before acceptance.”
- Duguid v Caddall’s Trustees (1831).
- Bathgate v Rosie 1976 SLT (Sh Ct) 16.
Regus Maxim: Rejection strikes down the obligation.
“If he in whose favour [promises] are made accept not, they become void, not by the negative non-acceptance, but by the contrary rejection.” (Stair I, 10, 4).
Conditional promises.
Suspensive condition:
- “If… then….”
- Petrie v Earl of Airlie (1834).
Gratuitous or onerous?
- “Where a promise is made subject to a condition requiring action by the promisee, the fulfilment of the condition does not convert the promise into a contract ex post facto.” (Regus, para 35).
