In practice, it is rare for contract cases to involve problems with the requirement of intention to create legal relations. This is large because in many of the situations in which the issue might be raised, particularly domestic and social ones, there is no consideration. The courts will only consider intent to create legal relations if an offer and acceptance and consideration have already been established.
The common law does not demand any positive intention to create a legal obligation as an element of the contract. The separate element of intention serves no purpose and is useful only in systems that do not have the test of consideration to help them to determine the boundaries of the contract as per Professor Williston. Mere social arrangements will be enforced as contracts if the other requirements of offer and acceptance and consideration for example are present and the issue of intention to be legally bound adds nothing to the decision of the court. But the case of Balfour v Balfour is an example of offer, acceptance, and consideration existing but there still is no contract, and the only explanation for this lack of contract seems to be that there was no intention to be legally bound.
Position of Feminists
Feminists argue that the presumption against contractual intention in domestic agreements is in fact the law’s way of saying that the work usually done by women is in fact the law’s way of saying that the work usually done by women is not to be regarded as important – it is seen as something done out of love for the family, rather than an economic contribution which ought to be paid for.

Scroll to Top