Intention to Create Legal Relations

Author(s): James O'Reilly

Source: Irish Jurist, new series, Vol. 6, No. 2 (WINTER 1971), pp. 323-325
Published by: Irish Jurist
Stable URL: https://www.jstor.org/stable/44027919
Accessed: 17-08-2019 18:01 UTC

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 NOTES

Intention to Create Legal Relations

Not all commentators agree that an intention to create le

relations is a necessary requirement for the validity of a contr
It suffices if you can prove offer, acceptance and consideration
essence a bargain. However, there remain a number of instances wh
the law will look for this additional requirement and, if it fin
lacking, it will refuse to grant the agreement contractual effect.
some instances the law will go even further and imply an intention
to create legal relations unless a contrary intention can be pro
The best instance of this type of contract is domestic and fam
agreements.
A further problem that may have to be faced in family arrange-
ments is that of ambiguity. It sometimes happens in family agreements
that there is a lack of certainty, a degree of ambiguity, which makes
the proving of contractual intent more difficult (see McKay v. Jones
(1959) 93 I.L.T.R. 93).

A recent example of the difficulties posed by these problems can

be seen by the decision of the Supreme Court in Re Rogers Deceased,
Rogers v. Smith (as yet unreported, the 16th July, 1970, Ó Dálaigh C.J.
and Budd J., FitzGerald J. dissenting). After an accident in 1954, the
plaintiff carried on his father's moneylending business. Subsequent
to this, he entered into an arrangement with his father under which,
out of the business profits, he was to pay his mother £5 a week and
discharge all the household bills and expenses. From 1954 until his
mother's death in 1966, he expended £1,500 in this respect. After his
father's death in 1960, the plaintiff claimed that under an agreement
entered into with his mother, she promised that in consideration of
any money he might spend on her behalf, he could reimburse himself
from her estate on her death. Among the statements of his mother
relied on was the following: "When I am dead and gone you will be
able to claim anything you may have spent on me". (Ó Dálaigh C.J. at
p. 4 of his judgment; Budd J. at p. 3; FitzGerald J. at pp. 4-5). It is
important to note the plaintiff's observation on this statement: "I am
saying what I think she meant. I am not saying what I think she said."
(Cited by Ó Dálaigh C.J. at p. 5). In 1966 the mother died leaving an
estate of approximately £2,500. There were eight next of kin, the eight
children of the deceased. Administration of the estate was granted
to her son, Michael Rogers. This action was commenced by his
married sister, Cecilia Smith, when she discovered that only £1,000
was available for distribution amongst the next of kin, her brother
Michael claiming £1,500 against his mother's estate. His sister wanted

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324 The Irish Jurist , 1971

the estate administered by the court. The order for

issue directed that Michael Rogers should be the plai
Smith, the defendant, thus reversing the roles in th
suit. The plaintiff, Michael, claimed the above sum o
agreement between himself and his mother. The def
on the other hand, that these payments were paid b
of filial affection and not by reason of any contract
(FitzGerald J. at p. 4). At first instance, McLoughlin J
of the plaintiff. He accepted his proposition that he
above obligations in consideration of his mother's prom
him out of her estate.

On appeal, the Supreme Court, by a majority, found in favour of

the defendant. The majority opinion of the court was that the plaintiff
did not establish a contract between himself and his mother. In the
words of the Chief Justice, the plaintiffs evidence was "too uncertain
and obscure to be acted upon" (at p. 9). The Chief Justice went on to
point out that, even if his arrangement with his mother was free from
this uncertainty, he did not prove an intention to create legal relations.
The cases on this latter point referred to by the court were Balfour
v . Balfour [1919] 2 K.B. 571 and Rose and Frank Co . v. Crompton
Brothers Ltd. [1923] 2 K.B. 261. The effect of these cases, so far as
they concern us here, was aptly summarised by Budd J.: "It clearly
emerges from these passages that in social and family matters agree-
ments may be come to which do not give rise to legal relations because
such a consequence is not the intention of the parties and in family
matters an intention to remain free of legal obligation will be readily
implied whereas in business matters the opposite result would
ordinarily follow" (at p. 2 of his judgment).
The leading case on this point is Balfour v . Balfour. Here the
court refused to enforce a contract between a husband and a wife
under which the husband was to send his wife £30 maintenance a
month. In the words of Atkin L.J. (cited by Ó Dálaigh C.J. at p. 7)
such agreements "are not contracts, because the parties did not intend
that they should be attended by legal consequences" ([1919] 2 K.B. 571,
at p. 579). Applied to a normal family background, this proposition
would seem to represent the law. The close relationship existing
between the members of £ family, and particularly in the above instance
of a mother and a son after her husband's death, may lead the court
to hold the parties "free of legal obligation." There may, however, be
some doubt as to its application where the family agreement does not
take place against a normal family background. Although the point
has not been decided in this country yet, what do you do in a Balfour v.
Balfour situation where the marriage is breaking up or has broken up?
Are such agreements to remain without legal effect?
Some guidance may be had from a decision of a strong English

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 Notes 325

Court of Appeal in
Denning M.R., Widg
This case concerned
hastily entered into
terms of the agreem
and transfer the ma
the remaining mortg
to transfer the hou
that the agreemen
plea failed and the c
of the Rolls, Lord De
had no application a
"In such cases their
to create legal relati
not living in amity
bargain keenly. The
want everything cu
intend to create leg

James O

Disciplinary Transfers from St. Patrick's Institution

The disciplinary power to transfer an offender sentenced to St

Patrick's Institution is set out in section 7 of the Prevention of Crime
Act 1908. The section now reads : "Where a person detained in (St.
Patrick's Institution) is reported to the (Minister for Justice) by the
visiting committee of such institution to be incorrigible, or to be
exercising a bad influence on the other inmates of the institution, the
(Minister for Justice) may commute the unexpired residue of the term
of detention to such term of imprisonment, with or without hard
labour, as the (Minister for Justice) may determine, but in no case
exceeding such unexpired residue". The phrase "with or without hard
labour" has been made redundant as a result of the decision of the
Supreme Court in State (Sheeńń) v. Kennedy [1966] I.R. 379:
ministerial power to order a term of imprisonment to be served with
or without hard labour was interference in the administration of justice,
a sphere reserved by article 34 of the Constitution to the courts. But
otherwise the transfer power amounts to what it did in 1909 when, in
Ireland, it governed the first disciplinary transfers from the Clonmel
borstal.

As recently as 1967 the St. Patrick's visiting committee expressed

the opinion that the machinery of the transfer power was not effective.
Nevertheless, the power continues to be regularly employed and the

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