OCR A2 Contract Law - Legal Intent - Intention to create Legal Relations (4)

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  • Created by: Majid
  • Created on: 28-02-13 20:21

ITCLR (4)

Commercial/Business:

Where at least one party is acting in the course of business, there is a basic presumption that there is ITCLR. Judges in this category insist that there is a very heavy burden, placed on those who wish to rebut the presumption. Vague or uncertain terms aren't enough. A casee to illustrate this is "Edwards v Skyways". In this case a claimant was offered an option regarding his pension where he was given 2 options, one which included an ex gratia payment. It was held that this was a commercial agreement and that there was a strong presumption in favour of creating legal relations as the word was ambigous which meant the parties didn't intend to be bound, but they were bound in this context. In the later case of "Esso v Customs and Excise", the case concerned the giving away of "free" coins bought with petrol. It was held that Esso were trying to gain more business from the promotion it was held there was ITCLR. Another case to illustrate this is "McGowan v Radio Brixton". In this case the claimant entered a radio competition where the prize was a free car. It was held that there was ITCLR as the claimant entered the competition as a member of the public expecting the car to be real and not a toy.

AO2: It is fair that the presumption has been applied in these cases, as in business one party makes a commercial gain. Unequal bargainin positions are protected for those in an unequal bargaining strength. Therefore, rebuttals can occur, but with reluctance. Very clear evidence will be needed such as a tightly worded clause or the "honour pledge clauses".

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