Suppose that one person offers to cook and in return his friend agrees to
provide drinks for the occasion. If the meal is ready but the drinks have
been forgotten, no one would seriously suggest going to court to enforce
the agreement. It is merely a social arrangement, and not a situation which
would, in the intentions of the parties or in view of most people, have legal
intent. It would be absurd if valuable court time was taken up with such
issues, and so the law must have a way of deciding that this kind of
disagreement does not become a legal battle – hence the presumption. This
situation is mainly concerned with arrangements within families, but also
extends to other relationships. Cases will often turn on their own facts, but
a fair number have been brought before the courts. Atkin LJ explained the
legal position in the following case.
It should be remembered, however, that the general presumption may be
rebutted, or overridden by a evidence that there really was a contract. Social
changes may also contribute to decisions in cases, and this is seen in the
following case.
68 Contract law
Balfour v Balfour (1919)
There are agreements between parties which do not result in
contracts within the meaning of that term in our law. The ordinary
example is where two parties agree to take a walk together, or
where there is an offer and acceptance of hospitality. Nobody
would suggest in ordinary circumstances that those agreements
result in what we know as a contract, and one of the most usual
forms of agreement which does not constitute a contract appears
to me to be the arrangements which are made between husband
and wife.
In this case Mr Balfour was a civil servant returning to his posting in
Bombay. His wife had been unwell and decided to stay in Britain. He
promised to pay her £30 a month in consideration of her supporting
herself without calling on him for further maintenance. When Mr
Balfour defaulted on the payments, his wife claimed that he was bound
by the promise to pay. It was held that no legally binding contract
existed. It was a domestic arrangement, not intended to create legal
relations. In any case, the courts were particularly loathe to investigate
matters arising between husband and wife.Merritt v Merritt (1970)
The facts were very similar, in that a husband and wife, living apart,
agreed that if the wife completed the mortgage payments, the husband
would transfer the house to her. This was held to be enforceable,
rebutting the presumption of no legal intent.