Even if the promise has to be constituted in writing, the conservatory could perhaps rely on s. 1(3) and (4) of the 1995 Act. In order to establish the statutory conditions successfully the conservatory must show that Carlo made the promise. They must then show that their expenditure was in reliance on the promise, and that it was known to and acquiesced in by Carlo. Moreover, the conservatory’s expenditure must be material and Carlo’s withdrawal must have adverse material consequences for the conservatory.

england

The answer to this question is not obvious under English law – no analogous case appears to have been decided – but it is suggested that the conservatory would be unable to recover against Carlo.

The first difficulty for the conservatory is that it is unlikely they will be able to establish that their agreement with Carlo satisfied the requirement of an intent to create legal relations. As discussed in regard to Case 1, there is a rebuttable presumption against finding such an intent in family and social arrangements and a presumption in favour of finding the intent in commercial arrangements. In neither case will a court ordinarily attempt to assess whether the parties were conscious that they were or were not attempting to create legal relations; rather it is assumed that, barring evidence to the contrary, such intent exists in ‘commercial’ arrangements but not in ‘social’ or ‘domestic’ arrangements.26 Carlo’s promise is difficult to categorize, but on balance it would appear to lie in the social rather than the commercial category, because it is not a bargain in an ordinary sense. Neither party, it appears, entered the agreement in order to make a profit. (This factual assumption may be incorrect, since the conservatory is a private body; and if it is incorrect then it is more likely that the requisite intent will be found.) Indeed, a common example of an agreement that lacks the requisite intent to create legal relations is an agreement to have dinner with a friend27 (though of course Carlo’s agreement differs from this example, as the proposed dinner was not merely between friends).

The second barrier to enforcing Carlo’s promise is that it does not appear that the conservatory provided or promised anything in

26For this reason, it has sometimes been suggested that the requirement of intent to create legal relations is not really concerned with finding such an intent, but is instead a means of keeping out of the courts relationships which would be detrimentally affected by actual or threatened legal enforcement.

27E.g., Balfour v. Balfour [1919] 2 KB 571, 578.

114 the enforceabilit y of promises

exchange, that is, there was no consideration (see Case 1). On the facts as described, the dinner is not to be held in return for Carlo’s promise to attend, but is rather the reason for the invitation. And, as explained in the discussion of Case 1, unrequested reliance on a promise – here the conservatory’s expenditures on food and publicity – is not valid consideration. The consideration point is not, however, entirely clear cut. If the court has already found an intent to create legal relations, then this intent, together with the conservatory’s reliance on Carlo’s agreement, might lead the court to interpret the conservatory’s invitation as an offer to put on a dinner for Carlo in exchange for Carlo agreeing to attend. As noted in the discussion of Case 1, the fact of detrimental reliance upon a promise is one factor that, it is often alleged, sways a court towards finding consideration. It is suggested, however, that a court would still hesitate to find the necessary consideration in this case. One reason is that in many situations it would be inappropriate to consider Carlo bound to such a promise. Suppose that Carlo became sick – or suppose that Carlo was on bad terms with one of the announced speakers at the dinner. On the other hand, the fact that Carlo’s reason for cancelling was financial, though irrelevant in strictly legal terms, would no doubt also sway a court towards viewing the arrangement as binding. Finally, as with the issue of intent to create legal relations, if the conservatory was hoping to make a financial profit on the dinner, and if Carlo was aware of this, a court would be more likely to find that consideration had been given for Carlo’s promise.

ireland

First, the conservatory must establish that there was consideration and that this consideration was sufficient in law (see Case 1). Second, the conservatory must show that the parties intended the agreement in question to be legally binding, that is, that there was requisite legal intent to create a binding contract.28

The conservatory would no doubt argue that the fact that the dinner was to be held in his honour and the fact that they had spent a large amount of money on publicity and food created a legally binding contract. However, it is doubtful whether this consideration is sufficient in law to create a legally binding agreement.29 Andrews LJ said that while ‘it is clear

28See Lens v. Devonshire Club [1914] The Times. See also Case 6.

29See Case 9; O’Neill v. Murphy [1936] NI 160 Northern Ireland Court of Appeal.