Discuss the extent to which the rules on intention to create legal relations are in need of reform (OCR H415/03 Specimen Paper).

This brief assignment will argue against the view that intention to create legal relations (ITCLR) is in need of reform in domestic cases. Instead, the doctrine remains an essential part of English contract law. The question will be split into two sub-inquiries. The former will set out English law's general position regarding the doctrine, while the latter will analyse two of the key arguments frequently advanced against the domestic presumption. It will then be concluded that neither argument advances a fatal attack on the doctrine.The English approach to the doctrine of ITCLR is best exemplified by Lord Atkin in Balfour v Balfour when stating "agreements such as these are outside the realm of contracts altogether. The common law does not regulate the form of agreements between spouses... The consideration that really obtains for them is that natural love and affection which counts for so little in these cold courts". While it appears that Atkin was, in this case, more concerned with policy than the intention of the parties, this certainly does not mean that the intentions of the parties were completely irrelevant. Instead, the rule in Balfour has been interpreted subsequently as a presumption that in 'domestic' or 'social' agreements the parties did not intend to create legal relations (e.g. Jones v Paddavatton). This must be viewed in light of the counter presumption in commercial agreements (e.g. Esso). The assignment will analyse the former presumption, demonstrating how two of the most frequently advanced criticisms of the domestic presumption do not cast the doctrine's practical importance into doubt.Firstly, it is frequently advanced that the doctrine is not appropriate for a modern society in which family law is increasingly governed by contract; the average prenuptial agreement being a classic example. However, this is belied by the fact that in most domestic agreements, the parties have no discernible intention one way or the other regarding the creation of legal relations. As a result, the negative presumption serves as an important safeguard against unknowing or less powerful parties in the bargaining process being dragged into the costly, demanding, and cumbersome world of litigation. After all, an essential element of respecting the parties' freedom of contract is an appreciation of their corollary freedom from contract.Secondly, it is frequently argued that the domestic presumption overlaps significantly with the doctrine of consideration, thus it no longer serves any unique function in our law of contract formation. This is argument is fallacious. While it is clear that there is a significant overlap between the doctrines since both go to the question of whether an agreement is to be granted the 'badge of enforceability', it is equally clear that consideration does not serve the aforementioned policy function of ITCLR. In Balfour, Atkin made clear the importance of limiting trivial domestic cases which take up court time (a function served by his domestic presumption), yet the principle that consideration must be sufficient but need not be adequate (Chappell v Nestle) comprises consideration's ability to achieve such. Moreover, any worry that this 'policy function' may lead to vital domestic disputes escaping the net of litigation may be assuaged by the fact that the domestic presumption may be rebutted with clear evidence to the contrary. This evidence includes the context in which the agreement was made (e.g. Merrit v Merrit), the reliance of either party (e.g. Parker v Clark), and the certainly of the agreement (e.g. Vaughan v Vaughan).Ultimately, it is clear that the aforementioned attacks on the doctrine do not advance advance any compelling argument that the domestic presumption of ITCLR is in drastic need of reform or abolishment.