agreement prove that they intend to have the agreement legally enforced.
▪ In other words, they must prove that
there’s an intention to create legal relations. Such intentions may be either express or implied from the circumstances. ▪Although the element of intention is 4
not mentioned under the Contracts
Act for a valid contract, nevertheless it is an essential element of a contract.
▪ Since the Act is silent on the issue, it
appears that the English Common Law principles will apply. 5
▪ Under the Common Law principles, in
order for the court to ascertain whether there is an intention to create legal relations or not between the parties to an agreement, all agreements are classified into 2 main categories of agreements:
i. Business/Commercial Agreements.
ii. Social, Domestic or Family Agreements
6
▪ Once the court had ascertained to
which category the agreement belongs to, then the court will apply a form of rebuttable presumption.
▪ (Andaian Yang Boleh Disangkal)
according to each category of agreement. 4. How The Court Determines Whether There Is An ITCLR Between Parties? 7 4th Element of a valid contract : The court will apply the English Common Law principles since the Contracts Act is silent on the issue.
1st Step: The court will classify
1. BUSINESS/ COMMERCIAL 1. SOCIAL/ DOMESTIC/ AGREEMENTS the agreements into 2 categories: FAMILY AGREEMENTS
2nd Step: Once the court has ascertained 2. Presumption:
2. Presumption: Parties HAVE an intention which category the agreements belongs to, Parties DON’T HAVE any to create legal relations, the court will apply rebuttable presumption intention to create legal unless it is proven relations, unless it is proven otherwise. otherwise. Balfour v. Balfour Choo Tiong Hin v. Choo Hock Swee Parker v. Clarker 3. Rebuttal of Presumption There was a written agreement between parties for lease of house. But there was a 3rd Step: How to rebut the clause mentioned ""subject to and is presumption? dependant upona formal contract being prepared ". Held: No enforceable contract. 3. Rebuttal of Presumption Winn v. Bull If the agreement is recorded in writing and signed by both parties Low Kar Yit v. Mohd Isa Merrit v. Merrit (1970) i. Business or 8
Commercial Agreements
▪For business or commercial
agreements, there is a presumption that the parties have the intention to create legal relations, unless the parties specify otherwise. ▪ (Andaian bahawa wujud niat untuk mengadakan hubungan di sisi undang- undang, kecuali dapat dibuktikan sebaliknya). Rebuttal of presumption (disprove) 9
How to rebut the presumption?
▪ If there is a “subject to contract” agreement.
Winn v Bull (1877)
There was a written agreement between Pf and Df for the lease of the house subject to the clause, “subject to the preparation and approval of a formal contract,” but there was no formal contract entered into. It was held that there was no enforceable contract. 10 11 ii. Social, Domestic/Family Agreements
▪For social, domestic or family
agreements, there is a presumption that the parties do not intend to have any legal relations, unless the parties specify otherwise. ▪ (Andaian bahawa tidak wujud niat untuk mengadakan hubungan di sisi undang-undang, kecuali dapat dibuktikan sebaliknya) Social and family agreements 12
Agreement is not intended to be
legally enforceable.
Balfour v Balfour (1919)
Df was a civil servant stationed in Ceylon and while on
leave in England, he has promised to pay his wife a monthly allowance as maintenance. Df then defaulted the promised i.e payment so the wife sued him. It was held that there was no legally binding agreement because parties did not intend they should be attended by legal consequences. 13
Rebuttal of presumption (disprove)
How to rebut the presumption?
Case: Merrit v. Merrit (1970)
■The husband and wife in this case jointly bought a house,
which was subject to a mortgage. Husband later left this house but agreed to pay the wife 40 pounds a month out of which she will pay the outstanding mortgage payments. He also agreed that when such payments had been completed, he would transfer the property to her sole ownership.
■The agreement was recorded in writing on a piece of
paper and signed by the husband. However, upon completion of the payment, he refused to transfer the house. 14
Held:
■The Court of Appeal decided that
in the light of the circumstances of the case, the parties had intended to create legal relations and accordingly ordered that the house be transferred to the wife. 4. How The Court Determines Whether There Is An ITCLR Between Parties?15 4th Element of a valid contract : The court will apply the English Common Law principles since the Contracts Act is silent on the issue.
1st Step: The court will classify
1. BUSINESS/ COMMERCIAL 1. SOCIAL/ DOMESTIC/ AGREEMENTS the agreements into 2 categories: FAMILY AGREEMENTS
2nd Step: Once the court has ascertained 2. Presumption:
2. Presumption: Parties HAVE an which category the agreements belongs to, Parties DON’T HAVE any intention to create legal the court will apply rebuttable presumption intention to create legal relations, unless it is relations, unless it is proven otherwise. proven otherwise. Balfour v. Balfour Choo Tiong Hin v. Choo Hock Swee Parker v. Clarker 3. Rebuttal of Presumption There was a written agreement between parties for lease of house. But 3rd Step: How to rebut the there was a clause mentioned ""subject presumption? to and is dependent upon a formal contract being prepared ". Held: No enforceable contract. 3. Rebuttal of Presumption Winn v. Bull If the agreement is recorded in writing and signed by both parties Low Kar Yit v. Mohd Isa Merrit v. Merrit (1970) 16 Please drop your question in the comment area, thank you!
Law School Survival Guide (Volume I of II) - Outlines and Case Summaries for Torts, Civil Procedure, Property, Contracts & Sales: Law School Survival Guides