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CONTRACT LAW'S RED HERRING: EXPOSING INTENTION AS A GUISE FOR
CONSIDERATION
LAURA GOLDFARB*
INTRODUCTION
Before the important case of Balfour v Balfour, a contract was thought to consist of three
elements; offer, acceptance, and consideration. Since that case, however, courts and academics
have debated whether intention to create legal relations should constitute a fourth, independent
requirement for contract formation. Some scholars view intention to create legal relations as the
foundation of any legitimately enforceable contract,2 while others see the requirement as
superfluous and distracting.3 The same divide can be seen across jurisdictions. The United
Kingdom, staying true to Atkin LJ's decision in Balfour, (at least theoretically) requires intention
to create legal relations,4 whereas the United States (at least theoretically) does not.5 For our part,
in a recent decision titled Ethiopian Orthodox Tewahedo Church of Canada St. Mary Cathedral v
Aga, the Supreme Court of Canada unanimously settled the debate in the affirmative; intention to
create legal relations is ostensibly required to form a contract in Canada.6
Copyright © 2023 by Laura Goldfarb.
* Laura Goldfarb is a JD Candidate at the University of Toronto (Graduating 2023) and received her Honours
Bachelor of Arts from Wilfrid Laurier University (2020). She wishes to thank her research supervisor Professor
Peter Benson for his generous support and guidance. The author also thanks the Western Journal of Legal Studies'
editorial team for their thoughtful feedback and edits.
1 [1919] 2 KB 571 [Balfour].
2 See e.g. Randy E Barnett, A Consent Theory of Contract (1986) 86:2 Colum L Rev 269.
s See e.g. Peter Benson, Justice in Transactions: A Theory of Contract Law (Cambridge: Harvard University Press,
2019).
a See Gregory Klass, Intent to Contract (2009) 95:6 Va L Rev 1437 at 1443-1453.
s Ibid.
6 Ethiopian Orthodox Tewahedo Church of Canada St Mary Cathedral v Aga, 2021 SCC 22 [Ethiopian Orthodox].
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