Legal Relations And Domestic Parties

2203 Words9 Pages
Intention to Create Legal Relations; Rebuttable Presumptions and Ermogenous.
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
…show more content…
The decision, presented by the high court of Australia, stipulates that presumptions are unhelpful and unnecessary. The majority states we doubt the utility of using the language of presumptions in this context [as they] serve only to distract attention from that more basic and important proposition". While this particular statement doesn’t mention other contexts, it can be inferred. In one of the original decisions presented by the Supreme Court it was noted that a church was characterised as a family agreement and as such rebuttable presumption against intention existed. When arguing this, the high court negated the rebuttable presumption, but not that of the domestic context. Furthermore the majority then discussed the way presumptions were understood, stating that they "may then be understood as suggesting, in some way, that proof to the contrary is to be seen as particularly difficult" in a way making the more difficult and distorting the application of basic principles. It was suggested that the subject matter, relationship, status of parties and surrounding circumstances should be used before and in place of presumptions. Additionally, when discussing the use of presumptions the majority further stated that it was “wrong” to apply presumptions to the case at hand. As such it is suggested and can be argued that the
Get Access