CPLC Work in Progress Seminar: 'Balfour v Balfour and the Separation of Contract and Promise'

Speaker:

• Dr Prince Saprai (UCL),  'Balfour v Balfour and the Separation of Contract and Promise'

In 1919, Balfour v Balfour gave birth to a new doctrine in contract law. In a dispute between a husband and wife, Atkin LJ said that domestic commitments were not within the jurisdiction of contract law; in that context the parties lacked an intention to make these agreements legally enforceable.

The intention to create legal relations doctrine is now so ubiquitous, that it is easy to forget that before Balfour, it existed only in the books. It has had profound implications for how contract cases are decided, and how contract law is understood. From inception, the doctrine has proved controversial. Feminists have attacked it on the basis that it has promoted sexist attitudes and licensed the exploitation of women by men. The difficulty lay with the sentiment that contractual and marital relations, like Venice and Belmont, are completely different realms: what goes on in the home is no business of the courts.

This paper focuses on the radical implications of this separation for how we understand contract law. In the 19th century, the view prevailed that contracts were the product of our wills. In the 20th century, Fried built on this, saying famously that contracts are promises. But if contracts are promises, why does contract law require not only promise, but after Balfour, a further intention, that the promise be legally enforceable? Fried gave no answer.

That tension between the promise theory of contract and the intention to create legal relations doctrine has led some to doubt the place of promise in contract. Kimel, for example, says that the intention to create legal relations doctrine is a portal between the realm of promise, where people are attached to one another, and the realm of contract, where detachment prevails. This paper argues that such dichotomies are misleading, and based on mistaken conceptions of freedom. Contract is not separate from promise. It is one of the ways that promise fulfills its function of giving meaning and shape to human relationships. The intention to create legal relations doctrine is compatible with the promise theory, because contract is a distinctive way to involve our selves with the world through promise.

Location: Moot Court Room

All seminars are open to Faculty members, Faculty visitors, PhD and LLM students.

For more information see the Cambridge Private Law Centre website.