In Determining Whether There Is an Agreement Between Parties, Is English Law Commited to an Objective View of Agreement?

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In answering the question, I will explain the difference between subjective and objective views of agreement. Identify which is used in English Law and why? Examine the relevant theories applicable to objective views on agreement. Look at the types of evidence that are used to make objective assessments and finally identify any exceptions to rule.

When determining whether an agreement exists between parties we must look at the intentions of each party. It is possible to analyse the intentions of parties from either a subjective or objective viewpoint. The subjective viewpoint looks at what the party’s themselves actually intended to obtain from an agreement and can be accomplished by simply asking each party what their intentions were. This however could lead to an untruthful representation of a party’s intention, which if provable, may in turn lead to legal action for fraud. Although, how would it be possible to prove a person’s opinion is a lie? As Brian CJ stated in 1478, ‘the intent of a man cannot be tried, for the Devil himself knows not the intent of a man’ (Anon, 1478).

Contractual agreements are made to convey a promise between parties. If the subjective approach were taken then a party could be made exempt from liability for breaking an agreement by saying that they had originally not intended to make such an agreement. No reliance would be able to be placed on a promise. The politico-economic implications of the ability to exclude oneself from an agreement in such a way ‘would impede commerce, invite fraud, and unfairly defeat good faith reliance on the natural meaning of a promise’ (Adams & Brownsword, 2004). It can be seen that a subjective approach has many limitations. English law has therefore adopted the objective approach to determining whether an agreement exists between parties, which can be emphasized by May LJ: ‘Subjective intention or understanding, unaccompanied by some overt objectively ascertainable expression of the...
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