Legal Principles Of The United States

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An intention to create legal relations is a necessary element of a contract . When family, social or domestic agreements are made it is presumed that the requisite intention is present . Academics in recent times such as Stewart , Blake , Vickovich and Edge have been critical in the way in which The High Court of Australia (HCA) has arrived at decisions that divert from common law principles and precedents. Academics have made claims that HCA decisions are unpredictable and perplexing . Kirby however, correctly argues that, if there is uncertainty, dissent and debate about legal principles, this due to the law being in a process of evolution . Controversially the HCA recently pointed out that ‘presumptions’ should not be …show more content…

The objective test is used by the courts to determine the intention of the parties. The court analyses the surrounding circumstances and asks if a reasonable person would regard the agreement as intended to be binding. This is significant in respect to not only to family, social and domestic agreements, but also to commercial agreements because the presumption that exists in commercial agreements can also be rebutted based on this earlier case.

Application of Presumption in Ermogenous v Greek orthodox Community of South Australia
The Ermogenous case is a good example of how the “intention to create legal relations” has not been formerly understood or implemented by lower courts in Australia.

The appellant Ermogenous came from abroad to take up the role of archbishop for the respondent the Greek Orthodox Church. The appellant ministered the needs of the community for 20 years. He received accommodation and a wage which was taxed. He also agreed to terms and conditions for his new role in the church. After Ermogenous retired he made a claim in the Industrial Magistrates Court for long service leave and annual leave alleged to be due to him as an employee under a contract of employment with the church . The court found

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