Introduction
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
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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
The case of Jonah v White (2012) 48 FAM LR 562 wishes to appeal the original decision of Murphy J, in which his Honour asserted that the appellant, (“Ms Jonah”) and the respondent (“Mr White”) had not been in a de-facto relationship in correspondence with the Family Law Act 1975 (Cth) (“the Act”). The appeal is bought before May, Strickland and Ainslie-Wallace JJ in the Full Court of the Family Court of Australia in Brisbane. The case seeks to question and determine what constitutes a law-binding de-facto relationship.
Courts traditionally presumed that commercial parties intent to create legal relations when entering into contracts, family members don 't. Albeit not without criticism, up to this point these twin presumptions seemed permanent. This article examines the pattern to lessening the emphasis on these presumptions by individuals from the judicial arena in determination of Australian cases and recommends that, following the High Court 's decision in Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95 intention to create legal relations presumptions ought to never again be utilised as a part of any setting. It concludes by considering the consequences for this area of law.
It is often believed that the relationship between certainty and flexibility in judicial precedent has struck a fine line between being necessary and being precarious. The problem is that these two concepts of judicial precedent are seen as working against each other and not in tandem. There is proof, however, that as contrasting as they are on the surface they are actually working together to achieve one common goal.
The court observed that the ‘legal meaning’, i.e. meaning the legislature is taken to have intended, may not correspond to the literal or grammatical meaning. As four justices put
All of the seven principles of the Constitution are very important, but these are the two most significant. Separation of Powers and Individual Rights are the two most important because of the duty they both serve.
A legally binding promise must also always be supported by consideration, a prerequisite defined as “the exchange of promises from each party- from the promisor to the promisee”. There is uncertainty in whether the consideration offered in this situation is sufficient or not. Moral obligations regarding “natural love and affection” are not deemed to be sufficient consideration unless there is a legal obligation involved. Whether Billy’s initial decision to work on the farm creates a sufficient enough legal obligation for
The Judicial Branch has also exerted is power to check the other branches and keep the balance
Few cases have generated as much public controversy. The role of the High Court in this drama was, however, a minor one. Controversy did not stem from the novelty and significance of the doctrinal issues raised by the case but from the ‘facts’: the question of what had
It is impossible to talk about American laws without talking about the source of those laws. Following the revolution, Americans were trying to instill a government that that was nothing like the monarchy they had freed themselves from. This led to the writing of the Constitution and the federalist paper, a group of documents written by early patriots, which were to increase support for the Constitution for ratification. During this time, the Articles of Confederation were use as a loose set of rules establishing a very weak central government that had no power over the states. This was done to prevent past mistakes with King George. Alexander Hamilton, James Madison (even though some scholars believe Madison was given too much credit) (Gerber
Historically, common law emphasized the importance of judicial decisions rather than utilizing the structure of codes, legal rules, and statutes as courts do today. In the past, judges documented and issued their decisions which were later circulated from one court to another and became known as common law. In cases where parties disagreed, common law court would look at previous decisions made in related cases and incorporate those decisions into the current case (Siegel, et al., 2011). If similar disputes had been resolved in the previous case, the court would utilize the same perspective to resolve their current case. This became known as precedent and like common law, continues to be utilized in today’s court system (Siegel, et al., 2011).
In the USA and in each of the fifty states, the most basic fundamental is a constitution, which is a relatively simple document and is the self-designated supreme law of the land. As the supreme law of the land, Constitutional Law texts are generally divided into two parts. The first part is about the allocation of powers. This entails two basic principles of American Constitution:separation of powers and division of powers. The former one discusses the interaction among the three constituent elements of national goverment, while the latter one refers to the extent of power possessing by the federal goverment and specification of states' power. Both of the two principles function under one
When determining ‘intention to create legal relations’ in contract law, courts traditionally held the objective rebuttable presumption that commercial parties intended to create legal relations and domestic parties did not. This is an assumption made by the court that is deemed to be true unless proven to the contrary. Furthermore this meant that in family cases the onus of proof was on the plaintiff to rebut the presumption and for commercial parties the onus of proof would be on the defendant to rebut the presumption. As a result of Ermogenous v Greek Orthodox Community, In recent cases, these rebuttable presumptions have become re-characterized and slowly
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‘R v Stone; R v Dobinson’ is significant as it addresses the point of ‘duty of care’ and the outcome was described as “highly controversial because of the low capabilities of the two accused” . Appellant Gwendoline Dobinson was treated differently to appellant John Edward Stone due to her gender. Dobinson was expected to care for Fanny due to women being the “primary care-givers in domestic relationships” , proving that “the rule on voluntary undertaking of responsibility potentially remains structurally gendered” . The case was dealt within the Criminal Division of the Court of Appeal by Geoffrey lane LJ, Neild and Croom-Johnson JJ. The appeals against conviction were dismissed although the appeal by Stone against his sentence was allowed, altering his sentence. The decision was also influenced namely “whether in a case of manslaughter it is necessary to prove that the defendant was reckless as to whether the victim would suffer death of serious bodily harm” .
To fully understand the impact of Williams v Roffey Bros & Nicholls Ltd [1989] on the doctrine of consideration, its is important to examine the doctrine more closely. Traditionally, modern English law has largely abandoned the benefit/detriment analysis and prefers the definition provided by Sir Federick Pollock that “consideration may be defined as an act of forbearance of one party, or the promise thereof, being the price for which the promise of the others is