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13 Flinders L.J. 95 (2011)
The Modern Animus Contrahendi: Focusing on Intention through a Contemporary Lens

handle is hein.journals/flinlj13 and id is 97 raw text is: THE MODERN ANIMUS CONTRAHENDI: FOCUSING ON INTENTION THROUGH A 'CONTEMPORARY LENS' ILIJA VICKOVICHt I INTRODUCTION When intention to create legal relations' emerged from the courts as a discrete contractual element about a century ago, the doctrinal debate that ensued focused on the need for it.2 That controversy appears to have been resolved, providing little more than historical context today. This article will argue that, insofar as intention is at all controversial or even noteworthy a century later, it is because the focus now is on its proper use. The question now facing superior courts is how intention is best utilised by a competent judiciary, in view of its considerable normative potential for setting public policy parameters for the enforceability of agreements. Courts may increasingly be challenged by the need to re-examine the kinds of agreements that will be recognised as legally enforceable contracts. Although such a challenge is unlikely in the case of clearly business transactions, it promises to appear as a live issue in disputes over arrangements, relationships and contexts that are less obviously commercial. This contention will be illustrated by demonstrating the ways in which intention has been used in superior court decisions t Lecturer, Macquarie Law School, Macquarie University. Intention to create legal relations is referred to hereafter as intention. The term animus contrahendi in the title and elsewhere in this article is Latin for the 'will or intention to contract'. It is used here interchangeably with 'intention' and is simply another name for the agreed intention to be legally bound by contract ...: H K Lucke, 'The Intention to Create Legal Relations' (1967-1970) 3 Adelaide Law Review 419, 419. 2 See The Emergence ofIntention below.

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