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Week 7- Intention to create legal relations Page 91-103 What is the third requirement to create a contract?
* There must be intention to create legal relations.
* This requirement is closely related with consideration. Parties will not make a contract if they did not have the intention to create a legal obligation. What is the objective approach?
* The court is concerned with whether the parties manifested an intention to create legal relations and not whether they actually intended to do so.
* They look at whether a reasonable person would be regarded as bound under a contract.
* However if A knew that B was play acting in making the contract, then the contract would not be formed. The court will take the subjective approach into account in this circumstance. What does the court presume about each kind of contract?
* Commercial contracts: o The court presumes that the parties made the contract with the intention to create legal obligations. o The onus of proof is on the person denying that a contract exists. o An exception is the letter of comfort.
1. Where the business tries to offer a good faith assurance that they will perform the obligation without creating a clear liability. They try and make the terms ambiguous and woolly to prevent an intention being found. In Branque Brussels Cambert SA v Australian National Industries Ltd they did not get away with preventing a legal obligation through a letter of comfort. o Ermogenous v Greek Orthodox Community of SA inc warns people that these rules are just used to establish a burden of proof and do not forbid certain groups from making contracts.
* Non binding commercial agreements. o People may purposely enter an agreement where they want to exclude the court's jurisdiction and create honour clauses (agreement is binding only in honour). o The only way to do this is if the agreement is not binding on both of the parties. o If an agreement is made binding, any attempt to exclude court intervention is contrary to public policy and is void.
* Agreements between family members. o It is hard to claim that there is the intention to create legal obligation. o The person wanting the court to recognise a contract has the onus of proof.
* Financial agreements between spouses. o Courts will often not go into the family sphere or the private sphere.
* Agreements between separated spouses. o The court will recognise the intention to contract because it is safe to assume this. o The Family Law Act 1975 makes provisions for married parties relating to financial affairs. It covers property distribution and maintenance of one party in marriage.
* Other agreements between family members. o Often there is not contract in families.
But Todd v Nicol is an example. A crucial factor is the degree of reliance by the plaintiff on the agreement. o But if the nature of the transaction is commercial with family members, it will be a contract.
* Non commercial arms length agreements. o Assume there is no contract for people not conducting a business like private sales, nannies and housekeepers.
* Government agreements: o A commercial agreement is contractual. o The implementation of an administrative policy is not contractual. E.g. Australian Woollen Mills Pty Ltd v Commonwealth. Administration of Papua New Guinea v Leahy is another example. What is a preliminary agreement?
* Parties write an agreement and intending to have more formal agreement in the future. For example, "subject to contract...or to preparation of a formal contract".
* You can pull out of the preliminary contract sometimes according to Masters v Cameron. o Parties have finalised the bargain terms. They want to be bound immediately. A contract is needed only to make the terms more precise. Parties are bound without the formal contract. o Parties agree on the terms but have made the performance of the terms conditional upon the execution of a formal contract. They are bound to bring the formal contract into existence. o Parties don't intend to make a formal agreement until a formal contract is executed. They are not bound until this time. o A fourth category? The parties intend to be bound but want to introduce more terms to a formal contract. An agreement is not binging if it depends on further agreement between the parties. o
Cases Presumptions that the court makes about commercial v family contracts Page 124 Ermogenous v Greek Orthodox Community of SA (2002) Facts:
* Ermogenous served as an Archbishop for 23 years in the Greek Orthodox church.
* When he resigned, he claimed that he was owed money in respect of accumulated annual leave and long service leave.
* He was treated like an employee and believed he was entitled to the payments. Remedy sought:
* Ermogenous wants the money owed. Prior proceedings:
* The Full Court of the Supreme Court allowed an appeal because the parties had not intended to create legal relations.
* The appeal is before the High Court. Legal issue:
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