ABSTRACT
Business parties are strongly presumed to have “intention to create legal relations”; the contrary presumption governs family agreements, collective bargaining between employers and trades unions, and other non-commercial situations. If the point of the bargain principle (consideration) is to mark out contract law as the enforcer of commercial agreements, the doctrine faces an obvious difficulty when confronted with “gratuitous” business agreements. The basic contours of the doctrine reaffirm the bargain principle (or rather the commercial heart of the bargain principle, explored above). Commercial bargains are without more presumed enforceable. A more educationally coherent approach would focus on the special problems of contract modification. The central task is to distinguish welcome flexibility (in the light of changing circumstances) from damaging opportunism. Commercial drafters routinely insert force majeure clauses. These supplement the deficiencies of the common law frustration doctrine.
