LAW OF CONTRACT

WHETHER OR NOT THERE IS INTENTION TO CREATE LEGAL RELATION IN SOCIAL AND DOMESTIC AGREEMENT

ADDRESSING THE ISSUE

It is trite law that for a contract to be valid there must be an offer, acceptance, consideration and intention to create legal relationship so that the court will be imbued with legal capacity to enforce such contract. See BENUE CEMENT CO. PLC V SKY INSPECTION NIG. LTD

INTENTION TO CONTRACT is the readiness of each party to accept the legal consequences relating to his contract. Thus, for a contract to be enforceable, it must be clear that the parties consented to enter into legal obligations and accept to be bound by them.

The existence of legal relationship in contract can be examined in two ways in which they might originate; Social and domestic agreement and Commercial agreement. We shall now consider the social social and domestic agreements.

DOMESTIC & SOCIAL AGREEMENTS

The general rule is that social agreements do not amount to contracts because they are not intended to be legally binding. The court presumes that where an agreement is made in a domestic and social situation, the parties did not intend to contract and consequently the parties to such agreement cannot sue each other on it. This is so because relationship between members of the same family and agreements entered into on that basis are usually devoid of legality. They are centered on feelings of allegiance, social bond and good faith rather than on legal relationship. The legal implication is that agreement made in course of family life are never supposed to be subject of litigation.

This was given judicial paracetamol in BALFOUR v. BALFOUR, the court held unanimously that there was no contract between the parties because parties, being husband and wife, dis not intend legal consequences. This rule was also adopted by the court in SPELLMAN v. SPELLMAN, where the court dismissed an action before it on the basis that agreement between husband and wife are most devoid of any contractual intention.

See also: JONES v. PADAVATTON.

However, the general rule that social and domestic agreements are not legally binding is based on presumption. Thus, can be rebutted in certain circumstances where there is strong evidence to prove the contrary.

The rule that domestic and social agreements are not legally binding will not apply in the following circumstances;

1. ACQUISITION OF REAL PROPERTY

Where the agreement entered into involves the acquisition, improvement or addition to real or personal property, intention to create legal relationship or intention to contract would be assumed. See the case of MERRITT v. MERRITT, where it was held that a written agreement was intended to create legal relationship between the parties because husband and wife were not living in amity and the agreement involved a real property.

2. LACK OF PEACE, FRIENDSHIP AND CORDIALITY

Where parties do not love themselves again and this results in distrust, unfriendliness and lack of Peace in the relationship, any agreement entered into in this state at that moment between the parties would be binding. In McGREGOR v McGREGOR, the court held that the agreement between husband and wife was enforceable because there was lack of amity in the relationship.

3. WHERE A PARTY SUFFERS TREMENDOUS DETRIMENT

Where the performance of a domestic or social agreement involves great sacrifices on of the parties or both parties, they would be presumed to have intended to contractual relationship; especially where one of the parties has done part of the agreement. This position has been given judicial flavor in PARKER v. CLARK, the court held that the rule that relations or social and domestic agreements do not intend contractual liability does not apply when such agreement occasion tremendous detriment.

Conclusively, whether there is intention to create legal relationship in domestic and social agreements or not varies basically on the circumstances surrounding the case. Whereas the law would not enforce agreements between relations on the basis of they did not intend to create legal relationship, there are situations where the law would still enforce agreements between relations.

I so submit

Yours

ZILLEX TERPASE

ADMIN

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