{"title":"Contract Law’s Red Herring: Exposing “Intention” as a Guise for Consideration","authors":"L. Goldfarb","doi":"10.5206/uwojls.v14i1.15360","DOIUrl":null,"url":null,"abstract":"This paper describes and evaluates the contested fourth requirement for contract formation: the intention of both parties that their agreement be legally enforceable (“legal intention”). I begin with an overview of the jurisprudence on legal intention, ending with the Supreme Court of Canada’s most recent pronouncement in Ethiopian Orthodox Church of Canada St. Mary Cathedral v Aga. While the Court in this case affirmed that legal intention is to be treated as a fourth requirement, its analysis reveals precisely the reason why it should not be: when courts purport to analyze legal intention, an inherently difficult value to assess, they often lapse into a veiled assessment of consideration instead. I draw on Peter Benson's conception of \"robust consideration\" to argue that we should dispense with the legal intention requirement. In its place, a clear test for robust consideration would allow courts to conduct self-aware analyses free from contorted intention assessments. I conclude by offering an interpretation of Balfour v Balfour, the seminar case supporting a legal intention requirement, that is consistent with my proposed approach to contract formation. ","PeriodicalId":40917,"journal":{"name":"Western Journal of Legal Studies","volume":" ","pages":""},"PeriodicalIF":0.2000,"publicationDate":"2023-01-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":"0","resultStr":null,"platform":"Semanticscholar","paperid":null,"PeriodicalName":"Western Journal of Legal Studies","FirstCategoryId":"1085","ListUrlMain":"https://doi.org/10.5206/uwojls.v14i1.15360","RegionNum":0,"RegionCategory":null,"ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":null,"EPubDate":"","PubModel":"","JCR":"Q4","JCRName":"LAW","Score":null,"Total":0}
引用次数: 0
Abstract
This paper describes and evaluates the contested fourth requirement for contract formation: the intention of both parties that their agreement be legally enforceable (“legal intention”). I begin with an overview of the jurisprudence on legal intention, ending with the Supreme Court of Canada’s most recent pronouncement in Ethiopian Orthodox Church of Canada St. Mary Cathedral v Aga. While the Court in this case affirmed that legal intention is to be treated as a fourth requirement, its analysis reveals precisely the reason why it should not be: when courts purport to analyze legal intention, an inherently difficult value to assess, they often lapse into a veiled assessment of consideration instead. I draw on Peter Benson's conception of "robust consideration" to argue that we should dispense with the legal intention requirement. In its place, a clear test for robust consideration would allow courts to conduct self-aware analyses free from contorted intention assessments. I conclude by offering an interpretation of Balfour v Balfour, the seminar case supporting a legal intention requirement, that is consistent with my proposed approach to contract formation.