"‘The existence of a separate requirement of intention to create legal relations has…been criticized by a number of commentators. It is submitted that there is much force in these criticisms and that it is unnecessary to impose a separate requirement of ‘intention to create legal relations’...
‘The existence of a separate requirement of intention to create legal relations has…been criticized
by a number of commentators. It is submitted that there is much force in these criticisms and that it is
unnecessary to impose a separate requirement of ‘intention to create legal relations’ over and above
those of offer, acceptance and consideration.’ (Furmston, 2010)
Do you agree? Give your reasons.
Candidate number:
Course code: LL1002
Word count: 2483
, A contract is defined as “an agreement which binds parties to it” 1. This agreement is legally
binding, but to be such there has to be consideration and an intention to enter the contract. From the
beginning of time, contracts have stood on three pillars: offer, consideration and the subsequent
acceptance of said offer. To be able to enter into a binding contract, it is necessary that the parties
possess an intention to be bound by the terms of a contractual agreement, and therefore the intention
to enter into legal relations2. Furmston, in his statement, claims that it is unnecessary for there to be a
separate requirement for intention to create legal relations, but this notion should rather be
implemented with those of offer, acceptance and consideration 3. However, this doctrine is vital in
English common law as it plays an important role in certain domestic, social and commercial
contexts to determine whether agreements are binding or not.
Using journal articles and case law, this essay will examine whether the doctrine of intention to
create legal relations is still a valid one, coming to a conclusion that, while different academics hold
differing opinions on its relevance, Furmston captures the idea of intention in a more simplified
manner which could change English law significantly, hindering it and changing all precedents.
The requirement to possess an intention to create legal relations stems from the case of Carlill v
Carbolic Smoke Ball Co. Ltd4. This particular case concerned the creation of a contract from an
advertisement. It was held in this case that the advertisement was a unilateral contract, and that Mrs.
Carlill buying the smoke ball constituted an acceptance of said offer and therefore the company had
the intention to create legal relation when they stated that if the smoke ball did not work, the
customers would be compensated with £100. This idea of intention to create legal relations was
further examined and confirmed in Heilbut, Symons & Co. v Buckleton 5 by Lord Moulton who stated
that “the existence of [an intention to create legal relations] on the parts of all parties to [the contract]
must be clearly shown”6. The case of Balfour v Balfour7 also brought up the issue of what
agreements and contracts were legally recognized, and established this doctrine within English law8.
1 Robert Upex, Geoffrey Bennet, Davies on Contract, 1
2 Max Young, Understanding Contract Law, 47
3 Michael Furmston, The Law of Contract, para. 2.169
4 (1893) 2 QB 163
5 [1913] AC 30
6 Ibid, 47 (Lord Moulton)
7 [1919] 2 KB 571
8 Ewan McKendrick, Contract Law: Text, Cases and Materials, 270
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