Intention to Contract: Public Act or Private Sentiment?

Abstract

In focusing on intention in contract law, this paper argues that intention plays a key role in the constitution of social relations. It argues that the transition from the will theory of contract to objectivism facilitates the free market, while the sustained focus on the mental element in domestic relations is used to deny the existence of a legally binding contract. In this way, intent shapes and redefines the gendering of public and private spaces, and configures sexual relations in subtle ways. This may be seen through judicial attempts to maintain the indivisibility of husband and wife in marriage through the marriage contract itself and to resist contractualism between them. The resistance to freedom of contract in marriage formation also denies same-sex marriage.