In the aspect of law, a contract is a legally binding agreement between two or more parties which contains elements of a valid legal agreement which is enforceable by law. An agreement is said to be reached when an offer offered by the offeree has been accept by the acceptor as an acceptance. These parties must have the capacity to be bound to the contract and the contract must not be insignificant, vague, unfeasible, or against the law. In daily life, most contracts can be and are made orally, such as purchasing a can drink or stationeries. Any oral agreement between two parties can form a legal binding contract as long as the good or service provided is legal. However, some contracts require material evidence, written documents for example purchasing a house as sometimes written contracts are required by either the parties, or by statutory law within various jurisdictions. When disputes arise among parties of the contract, the Courts will have to decide the judgment based on wheatear to place emphasis on intention of parties to the contract or other policy of considerations.
2.0 Intention to create Legal Relations
The Law recognizes that often the parties do not intend to create a legally binding contract. The law therefore says that there must be an intention to create legal relations and make a distinction between social and domestic agreement (where the assumption is that there is no intention to create legal relations) and commercial and business agreements (where the law assumes that the parties intend the agreement to be legally binding).
2.2 Social and Domestic agreements
2.2.1 Agreements treated as not legally binding
The cases suggest that agreements within families will generally be treated as not legally binding. For example, in Jones V Padavattan (1969), Mrs. Jones offered a monthly allowance to her daughter if she would give up her job in the USA and come to England and study to become a barrister. Because of accommodation problems, Mrs. Jones bought a house in London, where the daughter lived and received rents from other tenants. They later quarreled and the mother sought repossession of the house. The Courts decided that there was no intention to create legal relations and that all the arrangements were just part of ordinary family life. Therefore, the mother was not liable on the maintenance agreement and could also claim the house.
In Balfour V Balfour (1919), the issue was the promise made by a husband to pay his wife allowance while he was abroad. He failed to keep up the payments when the marriage broke down. The wife sued but it was held that arrangements between husband and wives are not contracts because the parties do not intend them to be legally binding. The court also decided that she had given no consideration for the husband’s promise.
2.2.2 Agreements treated as legally binding
In the case of Merritt V Merritt (1970), the husband had already left his wife and they met to make arrangements for the future. The husband agreed to pay 40 pounds per month maintenance, out of which the wife would pay the mortgage. When the mortgage was paid off he would transfer the house from joint names to the wife’s name. He wrote this down and signed the paper, but later refused to transfer the house. The court was held that when the agreement was made, the husband and wife were no longer living together; therefore they must have intended the agreement to be binging and their intention to base their future actions on the agreement was evidenced by the writing. The husband had to transfer the house to the wife.
The Courts have also had to consider cases that do not just involve members of the same family, and here the principle they apply is that the presumption that the arrangement is a purely social one will be rebutted if money has changed hands. For instance in the case of Simpkins V Pays (1955), a lodger and two members of a household entered a competition in the lodger’s name and paid equal shares. It was held that the presence of the outsider rebutted the presumption that it was a family agreement and not intended to be binding. The mutual agreement was a joint enterprise, to which cash was contributed on the understanding that any prize would be shared.
2.3 Commercial and Business agreements
2.3.1 Agreements treated as not legally binding
According to UK law, if either of the parties clearly stated that the agreements not to be bonded in law, then the court will respect the wishes of both parties. (ArticlesBase.com, 2005-2010) Under the case Rose and Frank Co. v J.R. Crompton & Bros Ltd, two business men signed an agreement regarding the production and sale of carbon paper. The agreement included the clause:
This arrangement is not entered into, nor is this memorandum written, as a formal or legal agreement … but it is only a definite expression and record of the purpose and intention of the … parties concerned to which they each honorably pledge themselves with the fullest confidence, based upon past business with each other, that it will be carried through by each of the … parties with mutual loyalty and friendly co-operation.
The relationship between the two parties broke down and one of the parties broke the agreement. Rose and Frank Co. sued on enforcement of the agreement. Both parties agree that the agreement signed will not be bounded under the law. When both parties broke up and either of the parties has broken the agreement, another party will not have the power to sue the party who break the contract. It is because both of the parties also agree that agreement signed will not be controlled by the law.
2.3.2 Agreements treated as legally binding
In some of the cases, the used of words in the contract may not be considered as a term of the contract as it may depends on the intention of the parties. (Ms. V. Maharaj, n.d) Based on the case Edwards v Skyways ltd 1964, Skyways ltd has used a term ‘ex gratia’ payment. It means that the extra payment offered by Skyways ltd to Edwards is not legal liable as it is only a voluntary act from Skyways ltd to Edwards. Skyways ltd has promised Edwards to pay him ‘ex gratia’ payment after he resign from the company but Skyways ltd refuse to respect the agreement after Edwards made his promise. When the case has brought to the Court, the Court is seeking the intention of both parties in the contract and takes consideration of the term ‘ex gratia’ payment. Finally, the Court has decided that the term ‘ex gratia’ payment used in the contract is not strong to rebut the presumption made between the parties. It is because the additional payment offered to Edwards is the main reasons that encourage him to resign from Skyways ltd. If Skyways ltd does not offer the ‘ex gratia’ payment, Edwards might not interested resign from the company. Therefore, Skyways ltd is liable to make the payment to Edwards as the ‘ex gratia’ payment is the intention of Skyways ltd to convince Edwards resign from the company.
3.0 Policy Considerations
Floodgate is a tool used by the court to prevent the burden of liability to the court and the defendant from becoming too heavy. This is by controlling the amount of cases rise before the court. Cases that arise are usually either from social and domestic agreements or agreements made in a commercial context. The floodgate is brought in by the court to bottleneck the number of cases coming from social and domestic agreements.
If the Court allow opening of the floodgates, allowing social and domestic agreements to be a valid intention to create a legal relationship the Court and administrative will unable to cope with the excessive number of cases thus resulting in an economic loss. Economic loss in term of time consumed to address these cases and inefficient spending of tax payer’s funds.
Secondly, it will obstruct the operations and activities of a properly functioning society because there will be an existence of social and public interest dimensions of whether uncontrolled liability.
Thirdly, there will be practical justice fear within the society concerning a possible burden of limitless liability. For example monetary recovery for physically injuries or psychiatric injuries inflicted in social and domestic agreements. Merely because a physically injured person has a family, every or any member of that family, will necessarily suffer a pathological reaction as a result of the physical injury.
An accident at a nuclear or industrial plant may result in radioactive or chemical poisoning of thousands if not millions of people and of vast areas of land, as illustrated by the explosion in one of the re-actors at the nuclear plant at Chernobyl, Ukraine, on 26 April 1986 and the escape of a large quantity of deadly methyl isocyanate from the Union Carbide Battery Plant in Bhopal, India, on 3 December 1984. Defects in the production of goods may likewise physically injure a very large number of people, as has been alleged in the case of defective silicone breast implants. The possibility of a multitude of claims from the one incident is not, however, a ground on which the courts would deny relief in actions for physical injury or property damage caused by such an accident. This was recognised by the fact that in the United Kingdom the legislature saw the need to enact the Nuclear Installations Act 1965 (UK), which limits the liability of nuclear operations to £5,000,000 (Butler, Desmond A, 2002).
3.2 Protecting social relationships
Chen-Wishart stated that this is also known as ‘freedom from contract’ which indicates that the courts are prohibited to intervene too much in social affairs of the citizens (Hujo, 2005). In the case of Jones v Padavatton, the case held that the mother/ daughter relationships was not contractual because of a lack of intention. Fenton Atkinson LJ claimed that the daughter had never thought her mother or herself to attend to the Court in order to impose legal responsibility. In addition, she also stated that she feels absurd that a family agreement should develop into a subject in the Court. At the time when the first promise was made, there was no indication of intention shown by both parties to be resulted in a contract. The daughter relied on the promise to a show a sense of esteem towards her mother’s promise of support, while the mother trusted her daughter that she would pass through the examinations as early as possible (Beale, Bishop & Furmston, 1990). Thus, both of the parties relied on the bond of trust developed rather than a contract.
Other than that, the same theory applies in Balfour v Balfour, Atkinson LJ also stated that most of the people who are involved in domestic and social agreements did not intend their agreements to be enforced by the Court of Law, and thus they are not legally bound. The agreements made between husbands and wives are based on mutual promises. However, this is not a form of contract as they do not intend to bring up the issue to the Court of Law. Agreements between spouses are said to be outside the field of contract and the court do not govern this form of agreement (Beale, Bishop & Furmston, 1990).
3.3 Promoting market transactions
Another fact to indicate that the Courts are more concerned with other policy considerations is based on the primary objective of the contract law to facilitate commercial transactions (Chen-Wishart, 2007). The general presumption states that all agreements made in a business context are to be legally binding, with the exception of three situations: (1) when an offer is vague and only represents a ‘mere puff’; (2) when a contract comprises of specified honour clauses; and (3) when an agreement is ‘subject to contract’. This is a crucial aspect which provides a guaranteed level of security and assurance when two parties enter into a commercial transaction because the involving parties would be certain of the formation of a contractual relationship between them. In this case, any promises, agreements or statements made between the contracting parties become more reliable as a claim regarding the breach of contract would be upheld by the Court. Consequently, the public is encouraged into various business dealings with each other on the basis of the presumption mentioned earlier; whereby they possess a higher degree of confidence since the risk of the other party violating the contract has been counteracted. Hence, the decision of Courts to judge on such policy considerations supports trading and promotes business transactions between parties whom otherwise might not have entered into the commercial contract. A prominent case to support the discussion above is Edwards v Skyways Ltd (1964) where the plaintiff’s rights to receive his ex gratia payment from the defendant has been protected due to the fact that there was a contractual relationship between the two parties.
3. 4 Illegal Contracts
Illegality is not just for criminal illegality but also concept that encompasses both contracts which are strictly illegal (prohibited by law) and those which are void (invalid and simply unenforceable law). If any of the terms or purpose are contrary to public policy at common law or under statute, the contracts may be void or void and illegal. Illegal contract is when they involve a degree of moral wrong, which caused the contract to be void.
A contract is also illegal at common law if the terms of the contract or intentions of either party involve the commission of one of the following. At common law on grounds of public policy, there are six types of contract that are illegal. They are contracts to commit crimes, torts or fraud, promoting sexual immorality, promoting corruption in public life, prejudicial to the administration of justice, prejudicial to the public safety and defraud the revenue.
Example case of Immoral contract which is illegal can be seen in Pearce v. Brooks (1866) 1 Exch 213. It is know that prostitutes cannot enforce contracts for payment for their service, therefore, in this case, a contract for hire of a carriage to the defendant knowing that it was to be used to solicit was void.
The intention to create legal relations is an essential feature of contract law in the UK, and the existence of the intention will depend on the nature and form of the contract and the contracting parties. If the intention of the parties is not obvious from the agreement, the court will then decide whether the agreement was intended to have contractual force. The test of intention used is objective. The Court also look at what was agreed by both parties overall, which are the circumstances, effects, words and actions. Therefore, there must be seriousness in both parties in making an agreement and not lacking the necessary intention.
In commercial agreements, there is a rebuttable presumption that parties intend to create legal relations and conclude a contract. In determining whether parties have created legal relations, the Court will look at the intentions of the parties. (The Need for Intention to Create Legal Relations in Contract Law, 2008)
Intention is the initial stage of contract and even if the element of offer, acceptance and consideration are present, the contract might not be an enforceable agreement if the parties did not have the intention to be legally bound. Once the contract is legally bound, both parties have to follow the agreement. One of the cases that look into the importance of intention is Mr. Balfour and Mrs. Balfour, which is a social activity between spouses. There is no intention to create a legal relation; therefore, Mr. Balfour has won the case. This shows that intention is important in creating legal relations.
In the aspect of commercial agreement, there is always a presumption that both parties are intended to create a legal relation. If the parties want to rebut the presumption, they must clearly mention that the contract will not be bounded under the law. For example, the case Edwards v Skyways Ltd is an argument between a pilot and its company. Skyways told Edwards that if he leave the company and do not claim full amount of his pension, then Skyways ltd will pay him extra money but the term stated in the contract is ‘ex gratia’ payment. Skyways ltd thought that the term ‘ex gratia’ payment can be used to rebut the presumption made between Edwards, but the Court decides that the term stated is not that convincing. The main concern of the Court is the initial intention of both parties as Skyways ltd has the intention to offer extra payment to Edwards if he does not take full amount of his pension and resign from the company. Therefore, the judgment is Edwards won the case as the initial intention of both parties entering into the contract is so visible. If Skyways ltd does not want to pay extra to Edwards, the contract must be written clearly the intention of both parties but not only use a term.
An intention to enter into legal relations must be proved before a valid contract can be made, or in other words that an agreement is not a binding contract unless it is intended to have legal effect. If the intention to create legal relations is express negatively, the intention of the parties will be respected by the Courts and there will usually be no legal relations.
When two business firms made an agreement for the supply of goods among each other, but binding in honor alone, then the agreement will not be a legal contract. Nevertheless, the parties may exclude legal results flowing from their mere agreement; they cannot prevent actual transactions from having their normal legal significance. They cannot, for instance, prevent the title to goods passing at some time under genuine agreement of sale.
It may be illogical for the Court in giving effect to an ‘honor clause’ when the only reason why the agreement should be effective is that it is contained in a legal contract, which this is not. But such clauses could make up a serious problem. This could be seen in certain types of contract, like the advantage of excluding legal value to an agreement could be all on one side. However, an argument against such a clause, based on public policy, has been rejected by the Court of Appeal in the case where a football pool coupon contained a formidable clause completely ousting the jurisdiction of the Court. The case is void because it is an offence against the public policy. This principle has been distinguished on the basis that it only applies where the parties have intended to create legal relationship in the first instance.
In the absence of an express clause of the kind we have been considering, a contract will rarely be ineffective due to lack of intention to create legal relations. There are circumstances where agreements are made without any thought of creating legal rights and duties. A simple illustration is the case of a social engagement, where all the other ingredients of a contract may be present and yet it is hardly possible for the agreement to be enforced by the law.
More recently, in Jones V Padavatton (1969), the Court of Appeal was divided on the enforceability of a promise by a mother to pay allowance to her daughter while she studied for the Bar. The Court was less concerned with the real intention of the parties then with the objective facts. In Ford Motor Co. V A.E.U. (1969), it was held that a collective bargaining agreement between an employer and a trade union was not enforceable as a legally binding contract. It seems doubtful if this was really the ‘intention’ of the parties; indeed, there seems some circularity in the reasoning in this case. The lack of the necessary intention was deduced from the fact that the Ford Motor Co.’s officials may have thought that the agreement was not a legal contract.
4.2 Policy Consideration
If all the cases regarding to social and domestic agreements were to bring up to the Court of Law, considering the Balfour v Balfour case, the husband promised the wife to grant an allowance of £30 a month to her during the husband’s leave, the wife’s acceptance of the payment by the husband as her living expenses indicates that she is willing to carry out her responsibilities to complete the household chores, other than she can sue him for his inability to provide the allowance in time, he can also sues her for the failure in carrying the obligation if she did not do so. The small courts would result in multiple hundreds of such cases if these cases are attended by legal Court (Beale, Bishop & Furmston, 1990). This would cause a delay in managing and settling the cases and thus effected in ineffective of the legal system. Therefore, an application of the theory of floodgates could restrict the number of cases that is being raised by the legal court.
Social and domestic agreements are constructed based on the mutual trust that is bonded in the relationships between family, spouses and friends. Thus, people do not intend to bring up the agreements in order to be considered by the court. In addition, agreements between spouses are excluded from the regulation of the court; thereby the court is restrained from interfering the social issue of the people. Consequently, the term ‘freedom to contract’ protects social relationships and prevents unnecessary cases to be brought up to the court.
Due to that, however, certain domestic cases that are prohibited from the court’s judgment may leave a negative impact on parties who have serious intention in creating legal relations and wish to solve their disputes or dissatisfactions with the help of the legal system. This then causes the relevant parties to be deprived of their rights in getting what they want, even if they are right, since there is nothing they can do without sufficient support from the Court. Eventually, they will lose confidence and trust in the court because they do not deserve a chance to approach legal means in solving unfair treatments. Concurrently, a considerable number of cases regarding family issues or conflicts will remain unsolved, thus, disturbing the peace and harmony of the society.
Moreover, the Courts are often concern with other policy considerations such that an individual who intends to be legally bound is given the affirmation of his genuine intention by forming a legal contract with the relevant party. This is an important aspect in promoting various types of business transactions in order to keep the mixed market economy in a well-balanced manner. As mentioned earlier, agreements that fall into the commercial category represents a rebuttable presumption which states that the parties do intend to form a contractual relationship, unless there is clear evidence showing that the parties did not intend to be legally enforceable. If this was not the case, the number of successful commercial agreements would definitely reduce drastically since there is no guarantee to the agreements or promises made between two parties despite they have intention to create legal relations. Referring to the case of Edwards v Skyways Ltd (1964), the Court has decided to adhere to policy considerations instead of the defendant’s intention to escape from making the ex gratia payment that has been promised earlier to the plaintiff. This decision proves the significance of policy considerations in providing an assurance to parties who are made legally binding through commercial agreements. Otherwise, the defendant would not have fulfilled the promise.
In addition, policy considerations prohibit the construction of illegal agreements. The Courts do not make judgments solely on the intention of the parties to form a contract. It is equally important for the agreements made to be abided by specific policy considerations to ensure that contracts that are immoral, socially or economically harmful are voided as they are illegal. This has to be complied closely regardless of the initial intention of the parties which may seem to be good in the first place. In the case of Pearce v Brooks (1886), the defendant’s claim was not upheld by the court since he was aware that the plaintiff was a prostitute before lending the brougham. Due to the fact that prostitutes cannot enforce contracts for payments of their services, this contract is considered illegal and thus, voided.
In the legal system, it is fundamental for the Courts to be able to identify the intention of parties to contract and at the same time apply relevant policy considerations when dealing with cases such that justice prevails. To ensure that the Courts are only entitled to jurisdiction over a reasonable number of cases appropriate for Court action, the test for intention and usage of policy considerations hold significance. First and foremost, the intention that has been communicated and understood by the plaintiff and defendant should coincide. In contract law, this initial intention determines the creation of legal relations between the parties. Cases that have passed the first stage will then go through a series of policy considerations. Following that, the courts will look into the seriousness of the actual intention of the parties in creating the relevant legal relations before a final judgment is reached. However, the final decision by the court depends greatly on each case as it is subjected to the variation in different situations. Hence, it is said that a unanimous verdict can be reached by the court upon striking the right balance between intention and policy considerations.
Butler, Desmond A.(2002) An assessment of competing policy consideration in cases of psychiatric injury resulting from negligence, Available at http://eprints.qut.edu.au/18404/1/18404.pdf [Accessed 5 November 2010].
Beale H. G., Bishop W.D. & Furmston M.P. (1990), Contract: Cases and Materials, Butterworth & Co. Ltd, London.
Chen-Wishart, M. 2007, Contract Law, Oxford University Press, United States of America, Available at http://books.google.com.my/books?id=CHYo04GovjcC&pg=PA112&lpg=PA112&dq=floodgates+for+intention+to+create+legal+relation&source=bl&ots=_IWWKeZXm5&sig=7nlZKiEfYUihPY1AQii9qkJGFmU&hl=en&ei=UsjOTJmYOIbQcY2-kIIC&sa=X&oi=book_result&ct=result&resnum=1&ved=0CBQQ6AEwADgU#v=onepage&q&f=false [Accessed on 5th November 2010].
Downes, T.A. 1993, A Textbook on Contract, Blackstone Press Limited, London.
Edwards v Skyways Ltd  1 WLR 349
Hujo P. (2005), The Doctrine of ‘Intention to Create Legal Relations’, Available at http://www.grin.com/e-book/109929/the-doctrine-of-intention-to create-legal-relations. [Accessed on 3rd November 2010]
Pearce v Brooks  LR 1 Ex 213, Court of Exchequer Chamber
The Need for Intention to Create Legal Relations in Contract Law, Articlebase 2005-2010, Available at: http://www.articlesbase.com/law-articles/the-need-for-intention-to-create-legal-relations-in-contract-law-381745.html [Accessed on 10th November 2010].
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