{"id":132,"date":"2009-07-01T10:31:06","date_gmt":"2009-07-01T15:31:06","guid":{"rendered":"http:\/\/ContractsLawInAction.law.miami.edu\/?page_id=132"},"modified":"2013-08-22T15:46:00","modified_gmt":"2013-08-22T20:46:00","slug":"prior-posts-consideration","status":"publish","type":"page","link":"https:\/\/contractslawinaction.law.miami.edu\/?page_id=132","title":{"rendered":"Consideration"},"content":{"rendered":"

Balfour and Intention to Create Legal Relations<\/strong><\/p>\n

On page 192, the the third full paragraph, Atkin states that agreements that two spouses make between themselves are mutual promises and there IS consideration; “nevertheless they are not contracts, and they are not contracts because the parties did not intend that they should be attended by legal consequences”. This is problematic for me, because it was my understanding that one’s subjective intention was irrelevant – that if objectively, a reasonable person would believe there was intention, then it is a contract.<\/p>\n

Exactly.\u00a0 Just because a court says something doesn’t make it true.<\/p>\n

You stimulated me to do a Weslaw search for “contract and ‘intention to create legal relation.”\u00a0 It produced only two cases.<\/p>\n

Torah Soft Ltd. v. Drosnin
\n224 F.Supp.2d 704<\/a>
\nS.D.N.Y.,2002.<\/p>\n

in which the court applied Israeli law, in which a subjective\u00a0intention to create legal relation is required.\u00a0 This court may be correct about Israeli law,\u00a0because in\u00a0civil law intention ( actual “will”) is much more important than in our common law and in civil law subective interpretation is preferred.<\/p>\n

Gray v. Toledo, St. L. & W.R. Co.
\n143 Mo.App. 251, 128 S.W. 227<\/a>
\nMo.App. 1910.
\nwhich states that “An offer must be sufficiently definite and certain to show an <\/a> intention<\/a> to <\/a> create legal relations<\/a> .”\u00a0 This is an old case and is not consistent with Balfour for the first part of your quotation shows that the offer was sufficiently certain.\u00a0 This case is\u00a0consistent with modern law only to the extent of\u00a0 requiring that an offer must be sufficiently definite and certain, but the modern test of whether an offer is sufficiently certain is whether there is the basis for the objective intermreptation of an intent to be bound and whether the\u00a0court\u00a0can fashion a remedy (R2 33).<\/p>\n

See also note 2, p. 193-4<\/p>\n

_____________<\/p>\n

Distinguishing a Contract from a Gift with a Condition<\/strong><\/p>\n

\n

I was confused by the discussion on Wednesday.\u00a0 How are we to tell whether it\u2019s a bargain or a gift w\/o asking whether the promisor is receiving some sort of benefit that he really wants or asking about the promisor\u2019s motive?<\/p>\n

\u2014(RER) This is confusing.\u00a0 The question that must be answered is whether the parties treat the consideration as that which is being exchanged.\u00a0 And this is to be answered without relying on motive or inducement or benefit. R2 79,81. \u00a0 How can it be answered?\u00a0 Supposedly, from the formal structure of the\u00a0 transaction.\u00a0 You assert that the consideration is that which is being exchanged and hope that the judge shares your background assumptions as to how parties bargain (i.e., ideas about motives and benefits).<\/p>\n

If forbearance alone is enough, it seems that anytime someone acts in reliance on the promise, there is an enforceable contract.\u00a0 So the whole doctrine of consideration would be pointless.\u00a0 I\u2019m very confused\u2026<\/p>\n

\u2013(RER) Promissory estoppel is an alternative to consideration.\u00a0 If you enforce promises because the promisor foresaw reliance and there was reliance, then you are right – the whole doctrine of consideration is not necessary.\u00a0 Action in reliance does not create a contract with consideration: in reliance of a promise of a gift, I do or not do something.\u00a0 This is still the promise of a gift, as what I do (or not do) is not given in exchange for the gift.\u00a0 Now, comes an alternative argument.\u00a0 If\u00a0 I knew how you were going to rely when I make a promise of a gift, then promissory estoppel comes to make this promise of a gift enforceable.\u00a0 But, this does not make all promises of gifts enforceable.\u00a0 I promise you a car when you finish the first year of law school.\u00a0 In reliance on my promise, you don\u2019t take a great deal on a car being offered to you by a fellow student.\u00a0 If when I made the promise, I had no reason to know of this great deal, then my promise is not enforceable because of promissory estoppel.<\/p>\n

\u2013(RER) Does this help?\u00a0 I\u2019m glad you asked these questions and hope that more students will blog.<\/p>\n<\/div>\n","protected":false},"excerpt":{"rendered":"

Balfour and Intention to Create Legal Relations On page 192, the the third full paragraph, Atkin states that agreements that two spouses make between themselves are mutual promises and there IS consideration; “nevertheless they are not contracts, and they are not contracts because the parties did not intend that they should be attended by legal […]<\/p>\n","protected":false},"author":2,"featured_media":0,"parent":0,"menu_order":0,"comment_status":"open","ping_status":"open","template":"","meta":{"_s2mail":"yes","footnotes":""},"class_list":["post-132","page","type-page","status-publish","hentry"],"_links":{"self":[{"href":"https:\/\/contractslawinaction.law.miami.edu\/index.php?rest_route=\/wp\/v2\/pages\/132","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/contractslawinaction.law.miami.edu\/index.php?rest_route=\/wp\/v2\/pages"}],"about":[{"href":"https:\/\/contractslawinaction.law.miami.edu\/index.php?rest_route=\/wp\/v2\/types\/page"}],"author":[{"embeddable":true,"href":"https:\/\/contractslawinaction.law.miami.edu\/index.php?rest_route=\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/contractslawinaction.law.miami.edu\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=132"}],"version-history":[{"count":5,"href":"https:\/\/contractslawinaction.law.miami.edu\/index.php?rest_route=\/wp\/v2\/pages\/132\/revisions"}],"predecessor-version":[{"id":883,"href":"https:\/\/contractslawinaction.law.miami.edu\/index.php?rest_route=\/wp\/v2\/pages\/132\/revisions\/883"}],"wp:attachment":[{"href":"https:\/\/contractslawinaction.law.miami.edu\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=132"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}