Jul 24, 2013 5:09 PM

The INTENTION TO CREATE A LEGAL RELATIONSHIP in regards to creating and/or entering into a CONTRACT- thread. . . . .

The parties to a contract must have INTENDED from the beginning of their negotiations that legal obligations would result from their agreement. This is based on the premise that the contract will be the result of a meeting-of-the-parties'-minds, or CONSENSUS AD IDEM, on the terms and conditions that will form the contract.

The first requirement of a contract is the INTENTION of the promisor to be BOUND by the promise he or she made. All agreements contain some kind of a PROMISE either to do something or to refrain from doing something. ALL contracts contain promises, but NOT ALL promises become contracts. Some promises carry with them a moral obligation, but ONLY a VALID contract carries with it a LEGAL OBLIGATION. The question to be determined, then, is whether the person making the promise (the promisor) INTENDED to be BOUND by his or her promise. Some people make promises intending to be bound by them. Some people make promises with no intention of becoming legally obligated to fulfill them. Without the INTENTION TO BE BOUND, a promise CANNOT form the basis of an ENFORCEABLE contract.

Since examining intention requires finding out what was in the promisor's MIND at the time the promise was made, PROVING intention can be difficult. As a result, the courts rely on a PRESUMPTION OF LAW that promisors INTEND to be BOUND BY the promises they make. Once this PRESUMPTION has been made, the ONUS, or 'BURDEN OF PROOF,' shifts to the promisor to prove that the intention did not exist. The courts look to EVIDENCE such as:

1. the CONDUCT OF THE PARTIES at the time the promise was made

2. the CIRCUMSTANCES SURROUNDING the making of the promise

3. the STATEMENTS MADE by the parties

4. the RELATIONSHIP between the parties

The test to be applied is- "Would a REASONABLE person hearing the promise, assume that the promisor INTENDED TO BE BOUND BY IT?"

PRESUMPTION OF LAW: an INFERENCE in favour of a particular fact; a RULE OF LAW, whereby a finding of a basic fact, gives rise to the existence of a presumed fact or state-of-affairs, UNLESS the presumption can be REBUTTED, or proven false, by the party seeking to deny the presumed fact.

(Fundamentals of Contract Law, Jean Fitzgerald & Laurence Olivo, Emond Montgomery Publications)