ABSTRACT
It is a part of the modern law of contract that an agreement, albeit supported by consideration, is not a binding contract unless it is accompanied by an intention to create legal relations. This is a feature of the law which, together with others, was imported from continental legal thought in the 19th century (see Chapter 2) and gradually accepted by the courts. No doubt the idea of ‘a concurrence of intention’ in the parties was attractive at a time when the law concentrated on party autonomy – and two wills becoming one in true consensus. Nevertheless, attribution of such an intention to the parties is, in the vast majority of cases, essentially unrealistic. Do parties actually turn their minds to this question? It is very doubtful if they do. Macaulay’s findings suggest the opposite and, as Atiyah points out: ‘The “intention of the parties” does not mean the real intention of these particular parties. It means that intention which reasonable parties would have had in those circumstances.’
