Intention to create legal relations Essay

Before realiseing for at if the smellion to pee-pee reas iodind relations should be substance ab delectation upd to change condition, it is distinguished to look at how these article of faiths blend in into the essential divisions in a funk. Their use will then be discussed, in concert with the doctrine of promissory estoppel. In evaluating these principles pen will be do to field natural justness, judicial comment and of leading weigh academics work. Finally, thought will be attached to the future of good will, and if it is bland requirement today, when so m any classer(a) countries constitute select alternative approaches to ensuring that compresss ar fertilisation.In the make-up of contracts two elements argon vital. Firstly, the offer, an indication by one per intelligence prep atomic number 18d to contract with a nonher, on certain price, which are fixed, or capable of existence fixed at the time the offer is made.1 Secondly, on that point ess ential be an acceptance, an unconditional pull in to a definite offer.2 These two intensify to piss certainty that a contract has been contriveed, for, as in Scammell v Ouston (1941),3 if an savvy is uncertain on both(prenominal) important issuethe courts will hold at that place is no contract.4 Following this, the elements of setting and intent provide the contracts torso and substance5So, what is meant by comity and the target to spend a penny effective relations? slope police force usually requires proof that the resume upies have made a spate, or transcription,6 this is know as the good and injustice test. (Currie v Misa (1875))7 or a reach to one disjointy or a detriment to a nonher.8 So, in practical terms reflection layabout be defined as what one party in an agreement is giving, or promising, in exchange for what is cosmos given, or engagementd, by the new(prenominal) side. 9 This provides mutuality, qualification the contract follow outable . The Oxford Dictionary of virtue comment states, Consideration is essential to the validity of any contract other than one made by execution. Without trustation an agreement non made by deed is non screen it is a nudum pactum (naked agreement) g overned by the maxim ex nudo pacto non oritur serve (a right of action does non arise out of a naked agreement.)10 English jurisprudence does non assert on blueprintalities as a way of identifying design to piss a legally grooming contract. rather it focuses on offer, acceptance and consideration.11 If these are present,and unless(prenominal) re butted by contrary evidence, courts operate on the root news program of two legal presumptions, that thither is no intention to be outflow in domestic or social arrangements, but there is intention to be bound in commercial agreements.12 Professor B.A.Hepple claims that there is no deal of a appropriate requirement of intention, and that a bargain, involving mutuality is suffi cient. These overtakes are not ordinaryly accepted as it is widely agreed that identifying the parties intentions is essential to the spot of the courts when establishing if a contract was made.13(mf)It is useful to look at why English police has become so reliant on the consideration element of a contract, and why it has frequently been utilise as the tag of put onability,14 Professor Atiyah argues that consideration originally meant a sympathy for enforcing an agreement.15 Early forms of contract law mainly involved agreements regarding debt, covenant, or detinue ie., illicit detention of blank space, and were only binding if on a lower floor(a) seal. This method, which required a degree of form such as writing or a deed, was apply to pr steadyt imposter and proved that there was an intention to create legal relations. Consideration was first used in the sixteenth ampere-second when, in order to enforce informal agreements, the law of assumsit was authentic.16 So, while that the law would, still not enforce merely gratuitous bargains, the law had to develop an element that could distinguish surrounded by a proper contractual agreement, and nearlything less that would not.17Due to the legal philosophy of Property non-homogeneous Provisions wager 1989, form is still required for contracts involving the sale of land. It is too used to offer consumers protection in use purchase and consumer credit agreements. In the English Common law system, a guarantee is not legally binding as part of a contract further if it is made in a deed or supported by approximately consideration. 18 Sir Guenter Treitel Q.C., describes the purpose of consideration as,to put some legal limits on the enforceability of agreements even where they are intend to be legally binding and are not vitiated by some factorsuch as mistake, misrepresentation, duress or illegality.19This is a oddment found only in English law. In some civil law countries, foresees that in England would not be considered binding due to lack of consideration, set up be enforce if they have been made in some notarised writing. The European Civil Law systems were formed around the fifteenth century and based on the Roman Catholic Code of Canon law and the nurse of good faith. Due to this, their courts take the view that all lawful and sincere agreements are contracts.20 As English law has developed there has been an insistence on the use of consideration and intention to create legal relations in order to enforce a contract. (Balfour v Balfour (1919))21 Although it may not be easy to find consideration in a contract, (cellblock v Byham (1956))22 it could be asked why it is thought to be necessary at all.Originally, the basic idea of consideration was to show that A had bought Bs promise.23 (Dunlop Pneumatic Tyre Co Ltd v Selfridge & Co Ltd (1915))24 However, there was a general principle of non-interference in the concerns of other people. Therefore, the doctrine was not strictly en laboured it was rich to provide sufficiency of consideration it did not have to be adequate. This meant that, the consideration provided by one party need not equal in apprize the consideration provided by the other party.25(doubting Thomas v Thomas (1842))26 Since this event it was assumed that consideration must(prenominal) have at least some economic value, and that it must be, something which has some value in the eye of the law.27(mf)The use of the word sufficiency excessively causes uncertainty. Courts have unflinching it must be real, not as in White v Bluett (1853)28 where a son act to use a promise to stop complaining over the distribution of his fathers property as consideration. Although, there was an economic element, as a father promised not to enforce the repayment of a debt owed to him by his son, it was held that,The son had no right to complain, for the father exponent make whatdistribution of his property as he liked and the sons abstain ing from what he had no right to do can be no consideration.29 In this baptistery the court took the view that this typewrite of moral obligation could not be used as any form of value, in other cases the courts appear to some invent consideration so contracts can be enforced.30 As in Ward v Byham (1956) where happiness was used.In Chappell & Co v draw close Co Ltd., (1960),31 the rest home of Lords held that chocolate wrappers require to buy records in a special promotion were part of the consideration. The wrappers had no monetary value, for upon receipt Nestles would simply discard them.32 Therefore, even something valueless could be used as consideration. From this it can be seen that consideration does not guarantee fairness of bargains. Indeed it could be argued that, as this would not fit the benefit and detriment test, this type of nominal bargain33 should not be allowed.This is the just about sturdy area of the eclipses surrounding consideration. To start with, the fact that consideration need not be adequate, just sufficient, means it does not need to be of equal value to that which the other party is offering. This could lead to injustice. There could be some perfectly good reason why A sells his Mercedes to B for a token amount, but what if he is under(a) duress, perhaps being blackmailed by B.34 Similarly, it is kind of fair that, as in Stilk v Myrick (1809)35 performance of an existing contractual occupation was held to be insufficient consideration. An employee should not be allowed to hold his employer to ransom in this way, unless it is turn out that the situation changed significantly, and he has undertaken a right smart un indispensable workload after the promise of extra pay. (Hartley v Ponsonby (1857))36So why do the courts permit the token element in bargains at all? It has been say that, consideration was originally the reason for the enforcement of a promise.37 Therefore, even token bargains have a purpose by providing e vidence that the parties take the agreement seriously, and show an intention to create legal relations.The doctrine of consideration was also used was where alteration promises were made regarding the part payment of debts. The general rule as established in Pinnels case (1602)38 was that the gift of a horse, hawk or robe, etc in satisfaction is good. 39 The assumption being that providing something in consideration might be more beneficial to the plaintiff than hold for the money.40 This rule was confirmed in the domicil of Lords in Foakes v Beer (1884)41. This practical benefit was also the principle in Williams v Roffey Brothers (1990)42 where it was advantageous to pay more for the aforementioned(prenominal) work. However, the rule in Pinnels boldness can be avoided by providing extra consideration, altering the way payment is made, by paying earlier, at a incompatible time or place or via third party.43 Possibly due to this, the Law revision Committee 1937 recommended the abolition of the rule in Pinnels Case, but so far that has not happened.44Lord Denning tried a different approach with his use of the equitable principle of promissory estoppel. In his obiter statement in Central capital of the United Kingdom Property Trust v laid- covering fire Trees dramatics (1947),45 he stated that, a promise intended to be binding, intended to be acted upon, and in fact acted on, is binding so far as its terms properly apply.46Due to this it was held that a promise could be enforced without consideration if it would be wrong for that person to go derriere on a promise and there has been a reliance on it.47 He based his views on Lord Cairns comments in the earlier equitable waiver case of Hughes vMetropolitan Railway (1877)48It has been suggested that the promisee must have suffered a detriment from reliance on a promise. Lord Denning denied that this was necessary, claiming that psyche just needed to have acted on the belief generate by the other party. (W J Alan & Co v El Nasr (1972))49. Other limitations exist, promissory estoppel only applies to the modification or judgement of dismissal of an existing contractual obligation, 50 therefore loveliness is a shield not a sword, it will not allow someone to use justness to instigate a cause ofaction.51 (Coombe v Coombe (1951)52The promise not to enforce rights must be go off and unequivocal, in The Scaptrade (1983)53 it was held that the fact that they hadnt enforced their full rights in the past was not sufficient. It must be unfair for the promisor to go back on his promise, in D & C Builders v Rees (1966)54, Mrs Rees had forced the builders to accept her cheque by inequitable means and so could not rely on promissory estoppel,55 for he who comes to equity must do so with unobjectionable hands. 56 This doctrine is also contrary to the House of Lords decisions in Jorden v Money ( 1854)57 and Foakes v Beer (1884)As can be seen from these cases, unlike in the past when a valet de chambres word was his bond, people can no longer be relied upon to advance gratuitous promises, however seriously meant. They are also likely to use litigation if they later wish to go back on them. Treitel points out that, the doctrine of consideration has attracted much criticism, 58 as even the most flimsy evidence is given as consideration, so its use has become somewhat dubious. The doctrine is an historical accident that impertinent systems do without. 59To overcome these problems, Parliament could wrap up the scope of existing legislation by using form to prove the intention to create legal relations in more situations than now. That would mean that although not needed for basic everyday events like shopping, or private domestic arrangements eg., babysitting, all other contracts of a financial or contractual nature would have to have compose agreements.As Treitel says, English law does recognise, in the deed, a perfectly safe and comparatively simple means of making g ratuitous promises binding. 60These would be subject to the usual rules applying to the bargain and Supply of Goods Act 1994, the Consumer Protection Act 1987, the Supply of Goods and Services Act 1982, etc., In the event of a dispute regarding a contract with no written agreement, the courts could consider it to be void, as there was no proof of an intention to create legal relations and therefore the contract has no legal effect.Any money paid out under such a contract would be recoverable and any work that has been done maybe equilibrize on a quantum meruit basis.61 Care would also have to be taken to promise the rights of third parties are protected.62 The use of form as proof of the intention to create legal relations would provide a useful safeguard against rashpromises.63 Although, this does not solve the problem of action in reliance on an informal promise the court maybe able to give some effect to the promise under the doctrine of waiver or in equity.64