Balfour v Balfour and the Separation of Contract and Promise

• Published in The Legal Studies 10.1111/lest.12162. (In press).

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Abstract

In 1919, Balfour v Balfour gave birth to the intention to create legal relations doctrine in contract law. In a dispute between a husband and wife, Lord Justice Atkin said that domestic commitments were not within the jurisdiction of contract law. It has had profound implications for how contract cases are decided, and how contract law is understood. In this paper, I focus on the radical implications of this doctrine for contract theory. Charles Fried said famously that contracts are promises. But if contracts are promises, why is it that contract law requires not only promise, but after Balfour a further intention, that the promise be legally enforceable? That tension between the promise theory of contract and the intention to create legal relations doctrine has led some to doubt the place of promise in contract. Dori Kimel, for example, says that the doctrine is a portal between the realm of promise, where people are attached, and the realm of contract, where detachment prevails. But such dichotomies are misleading. Contract is not separate from promise. It is one of the ways that promise fulfils its function of giving meaning and shape to human relationships.