Essay question
'The doctrines of certainty and intention to create legal relations serve no useful purpose and should be abolished.' Discuss.
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Model answer
The proposition invites critical evaluation of two foundational requirements for contract formation. While both doctrines have been the subject of academic criticism, their abolition would create more problems than it solves. This essay argues that the doctrines, properly understood, perform important functions—limiting the scope of contractual liability, respecting party autonomy, and promoting commercial certainty—but that incremental reform may be warranted in certain contexts.
The functions of certainty
The certainty requirement serves three core purposes. First, it ensures that contracts are enforceable: a court cannot grant specific performance or award damages unless it can determine what the defendant promised to do. As Lord Wright observed in Scammell v Ouston [1941] AC 251, a contract must be 'complete and certain' or the court would be 'making a contract for the parties'. This is not a mere technicality; it reflects the constitutional principle that courts enforce bargains, they do not write them.
Second, the doctrine respects party autonomy. If parties leave essential terms unresolved, it may be because they have not yet reached agreement, or because they wish the arrangement to remain non-binding pending future negotiation (Walford v Miles [1992] 2 AC 128). Enforcing an incomplete agreement would impose obligations the parties did not undertake. The refusal to enforce 'agreements to agree' is thus a corollary of freedom of contract: the law does not compel parties to negotiate or to conclude bargains on terms they have not accepted.
Third, certainty promotes commercial predictability. Businesses need to know whether their arrangements are binding, and on what terms. The law's insistence on certainty reduces the scope for opportunistic litigation and ensures that contracts function as planning instruments.
Critics, however, argue that the doctrine is too rigid. Hugh Collins and Macneil point to the prevalence of relational, incomplete contracts in practice—long-term supply agreements, construction projects, franchises—where parties deliberately leave terms flexible and rely on cooperation and good faith. The certainty doctrine, they contend, is out of step with commercial reality and may invalidate arrangements the parties intended to be binding.
There is force in this critique, but it overstates the law's rigidity. English law has developed several mechanisms to uphold incomplete agreements: implication of terms (The Moorcock (1889) 14 PD 64), resort to machinery such as expert determination (Sudbrook Trading Estate Ltd v Eggleton [1983] 1 AC 444), and statutory default terms (Sale of Goods Act 1979, s 8). The doctrine does not require that every detail be specified, only that essential terms be certain or capable of being rendered certain (Hillas v Arcos (1932) 147 LT 503). The courts have shown considerable pragmatism in commercial cases, straining to uphold bargains where the parties have acted on the agreement or where trade custom supplies missing terms. Abolishing the certainty requirement would not make vague agreements any easier to enforce; it would merely shift the problem from validity to interpretation and remedies. A court still could not grant specific performance of a promise whose content it cannot determine. The doctrine of certainty, therefore, serves a necessary function and should be retained.
The functions of intention to create legal relations
The intention doctrine performs a different but equally important role: it limits the scope of actionable promises. Not every promise, even if clear and supported by consideration, should attract legal consequences. The law does not and should not enforce casual social arrangements, trivial courtesies, or intimate domestic promises. As Atkin LJ stated in Balfour v Balfour [1919] 2 KB 571, 'the common law does not regulate the form of agreements between spouses'. The presumption against intention in domestic contexts reflects a sound policy of non-intervention in private and family life.
The doctrine also respects negative party autonomy: the freedom not to contract. Commercial parties may wish to enter 'honour clauses' or 'subject to contract' arrangements, and the law gives effect to such choices (Rose & Frank Co [1925] AC 445). This is particularly important in preliminary negotiations, where parties need flexibility to explore options without being bound.
Nevertheless, the doctrine has attracted criticism on two fronts. Howarth argues that it is redundant: if offer, acceptance and consideration are present, why require a further element of 'intention'? The presumptions, he suggests, are merely policy rules dressed up as tests of subjective intent. Atiyah goes further, arguing that the doctrine is incoherent: intention is an objective test (what the reasonable person would infer), yet it purports to identify the parties' actual intention. The result is that courts use 'intention' as a tool to deny enforceability to agreements they regard, for policy reasons, as unsuitable for legal enforcement—a covert exercise of discretion.
These critiques have merit, but they do not justify abolition. The doctrine is best understood not as a search for hidden subjective intention, but as a context-sensitive test for whether an agreement is of a kind that ordinarily attracts legal consequences. The presumptions—commercial agreements are binding, domestic arrangements are not—are workable heuristics that promote certainty and reduce the need for evidence of subjective intention in every case. They are rebuttable where the context (e.g. separation, formality, substantial value) indicates otherwise (Merritt v Merritt [1970] 1 WLR 1211; Parker v Clark [1960] 1 WLR 286). This strikes a reasonable balance between respect for party autonomy and the need for administrable rules.
Moreover, abolishing the intention requirement would generate difficult questions. Should a dinner invitation be actionable? A parent's promise to a child? A handshake between friends? Some limiting principle is necessary, and 'intention' provides that principle without the need for ad hoc judicial discretion. The doctrine is not redundant; it does normative work that offer, acceptance and consideration cannot do.
Reform or abolition?
Rather than wholesale abolition, incremental reform may be warranted in specific areas. First, the domestic presumption could be relaxed in cases involving cohabitation agreements and economic arrangements between family members, where parties may have a legitimate expectation of legal protection. Arden LJ and family law scholars such as Probert have made this argument, pointing to the social reality of modern families. A statutory framework, akin to the New Zealand Property (Relationships) Act 1976, might be preferable to a blanket presumption.
Second, the refusal to enforce agreements to negotiate in good faith (Walford v Miles) might be reconsidered in the context of long-term, relational contracts. A limited duty to negotiate in good faith—of the kind recognised in the UNIDROIT Principles and in some Commonwealth jurisdictions—could be implied where the parties have begun performance or made significant relational investments. This would not entail open-ended discretion; the content of the duty could be specified by analogy to fiduciary and employment law.
Third, greater use could be made of statutory default terms to reduce uncertainty, particularly in consumer and small-business contracts. The Sale of Goods Act 1979 and Consumer Rights Act 2015 already do this for price and quality; similar provisions could address duration, termination, and variation clauses.
Conclusion
The doctrines of certainty and intention to create legal relations are not mere formalist obstacles; they serve important substantive purposes. Certainty ensures that contracts are enforceable and respects party autonomy by refusing to impose obligations the parties have not agreed. Intention limits the scope of contractual liability and protects freedom not to contract. Both doctrines are flexible and context-sensitive, and the courts have developed pragmatic solutions to uphold commercial bargains wherever possible.
Abolition would not simplify the law; it would create new problems of scope, enforcement and remedy. The better course is incremental reform: relaxing the domestic presumption in appropriate cases, recognising limited duties of good faith in negotiation, and expanding statutory default terms. With these adjustments, the doctrines can continue to perform their essential functions in a modern, commercial legal system.