Intention to create legal relations

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Before looking at if the intention to create legal relations should be used to replace consideration, it is important to look at how these doctrines fit into the essential elements in a contract. Their use will then be discussed, together with the doctrine of promissory estoppel. In evaluating these principles reference will be made to case law, judicial comment and of leading contract academics work. Finally, thought will be given to the future of consideration, and if it is still necessary today, when so many other countries have adopted alternative approaches to ensuring that contracts are binding.

In the formation of contracts two elements are vital. Firstly, the "offer," an indication by one person prepared to contract with another,
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In the English Common law system, a promise is not legally binding as part of a contract except if it is made in a deed or supported by some 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 intended to be legally binding and are not vitiated by some factor such as mistake, misrepresentation, duress or illegality."[19]

This is a peculiarity found only in English law. In some civil law countries, promises that in England would not be considered binding due to "lack of consideration," can be enforced 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 value 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, (Ward 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 B's promise.[23] (Dunlop Pneumatic Tyre Co Ltd v Selfridge & Co Ltd (1915))[24] However, there was a general
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