ABSTRACT

The main subject matter of this chapter is the means by which the courts decide whether parties have reached an agreement which potentially is one which the courts will enforce. A related question is that of why the law of contract should be engaged to deal with the parties’ transaction. There are several potential reasons. First, it might be the case that the courts will simply be responding to the wishes of the parties. In other words, the law is acting in a facilitative way. The parties have intentionally formulated their agreement as a contract, and now which to make use of the mechanism of the courts to resolve a dispute. They can choose not to use the courts if they wish, and indeed many commercial disputes are settled by alternative methods such as arbitration or mediation. Such methods may make reference to the law of contract as it is thought it would be applied by the courts, but essentially the parties have in such a situation decided to take their dispute out of the formal legal process. Thus the decision to engage with the law of contract is in the hands of the parties.