Many agreements are created in everyday life where there is no intention to create legal relations such as arranging to meet a friend for dinner. In many cases it falls on the courts to establish a balance between the intention to create legal relations and frivolous claims that would amount to unnecessary use of the courts resources. Some commentators have criticised the creation of the doctrinal requirement of an intention to create legal relations. It is also contended by academics that the requirement of an intention to create legal relations is interconnected to the doctrinal requirement of certainty of contract. In the event of a contract containing vague or ambiguous terms it is often inferred to lack the requisite intention to create legal relations, thus resulting that a binding contract does not exist. This essay will analysis how the courts interpret the presence of an intention to create legal relations in an agreement, agreements that are not presumed to create legal relations and agreements that are presumed to create legal relations. Clarke notes occasions when parties may wish to reserve legal relations for example the insertion of a “subject to contract” term in a transaction of land. Clarke is critical of the need for intention to create legal relations and highlights that it is the doctrine of consideration that the common law uses to distinguish enforceable and promises from non-enforceable promises.
Where one party did not ever have the intention to create legal relations with the other party to the agreement, it will not be sufficient to prevent the courts recognising the creation of a contract. The law takes an objective approach to establishing whether an intention to create legal relations exists as taking a subjective approach would allow almost all contracts being avoided by one party simply stating they did not intent for the agreement to be legal binding. This is the reason party’s actions and words are viewed objectively. If their conduct, having been viewed objectively, results in the view that they had an intention to create legal relations, they will be held to have such and intention and thus be bound to the contract. The Supreme Court approved this approach in Emo Oil Ltd v. Sun Alliance and London Insurance plc following the views expressed by Laffoy J in UPM Kymmene Corporation v. BWG Ltd, stating “the court’s task is to ascertain the intention of the parties and the intention must be ascertained from the language they have used, considered in light of the surrounding circumstances and the object of the contract.” Laffoy J goes on to state that an objective approach must be taken. This approach was affirmed in Analog Devices BV v. Zurich Insurance Company and Redfern Ltd v. O’Mahony & Ors. Fennelly J in the recent Irish case ICDL GCC Foundation FZ-LLC v. European Computer Driving Licence Foundation Ltd confirmed the statement of principle set out by Lord Hoffmann in Investors Compensation Scheme Ltd v. West Bromwich Building Society adding that Lord Hoffmann’s statement should not be misinterpreted as advocating loose and unpredictable interpretation of parties actions and words. Rather, words will normally be interpreted with their “natural and ordinary meaning…” Fennelly J then went on to further clarify that it should be assumed that business people know what they are doing and will normally be bound by the contract they have signed.
The modern approach to interpretation of a contract as outlined above is to produce the meaning the document would convey had the contract been interpreted by a reasonable person having all the background information that would reasonably have been available for the parties in the situation at the time of the contract. Although amounting to increased litigation costs for parties it arguably more accurately reflects the parties’ true intentions more than a literal approach. This was affirmed in the recent UK Supreme Court in Rainy Sky v. Kookmin Bank stating that the aim of interpreting a provision in a contract, particularly a commercial contract, is to discern what the parties meant by the language they used by establishing what a reasonable person would have understood the parties to have meant.
In O’Rourke v. Talbot the court relied on objective intention to find the parties intended to create legal relations. The respondents in this case argued that they entered into an “honour” with the plaintiff rather than a legal binding agreement. Barrington J found that although the respondents had not intended to create legal relations they knew the plaintiffs believed they were creating a legal binding contract. The court held that a binding contract had been created. The decision by the court in this case is to be commended as it would be unjust to allow a party to enter an agreement on the pretence that the agreement will be legally binding only for that party to later find out that the agreement was not intended to be legally binding.
In the case of Boweman v. ABTA the Court of Appeal held that a noticed displayed on the premises of holiday tour operators who were members of the Association of British Tour Operators (ABTA) could constitute an offer by the Association. The court held this decision based on the language used in the notice “to protect customers”, “for your benefit” and “limitation” confirmed its legal nature. Hobhouse LJ stated that the use of this language was to convey to the client that they would get something of value, amounting to a unilateral offer containing clear promises that the courts could enforce. The Court of Appeal stated that the notice read by a reasonable member of the public would likely be of the opinion that the noticed contained an offer that was a legally enforceable promise. The ABTA argued that in displaying their notice to the public they never intended to create any legal liability to the public. The Court of Appeal dismissed this argument favouring an objective approach to interpreting the noticed.
The law seeks to avoid entering the family home without due cause and it is for this reason that there is a presumption that agreements between close family members are not intended to create legal relations. O’Sullivan J in Leahy v. Rawson confirmed the presumption will only apply to close family relationships, such as spouses and parent and child. However, the presumption may be rebutted by evidence proving the transaction was formally recorded or that one party relied on the contract being binding and incurred expenses or acted to their detriment on that basis.
Agreements between Spouses
The court will consider the degree of closeness within the family relationship when determining the enforceability of a contract. The leading case in familial agreements is Balfour v. Balfour, a husband who lived apart from his wife promised to pay his wife a monthly payment of £30. The married couple subsequently separated and the wife sued for breach of contract. The Court of Appeal held that a married couple frequently make contracts containing consideration or something akin to consideration but that neither party intends to create legal relations. Atkin J stated that the common law recognises that it has no place regulating agreements made between spouses. However, in the Irish case of Courtney v. Courtney the court held that an agreement made between spouses, where due to matrimonial differences they were living apart, would be held to have an intention to create legal relations. The courts have made the distinction that agreements made by spouses who are no longer living together will be held to be enforceable. This is an important decision by the court as otherwise separation agreements would not be legally binding.
An example where the presumption in relation to spouses is rebutted is in Merritt v. Merritt. The husband and wife held their family home in their joint names. The husband left the home and agreed to pay £40 a month that the wife should use to pay the mortgage. He signed an agreement stating he would transfer his share in the property to her once the mortgage was paid off. Consequently, the wife sued for breach of contract. The court held that she could sue due to the fact that they had been living apart and the husband was now living with someone else. The court ultimately found that the parties had intended to create legal relations.
In Shortall v. White The Court of Appeal in New South Wales extended the presumption that agreements between cohabiting couples will be viewed in the same light as spouses and will be presumed not to have an intention to create legal relations. This decision by the Australian court highlights the courts willingness to adapt to societal changes. It is likely the Irish courts would follow the decision in Shortall should a similar case come before the courts.
Agreements between other family members
The presumption between spouses also applies to other family relationships including those between siblings and parents and their children. In Jones v. Padavatton a mother, who was not living with her daughter, promised her an allowance to leave her job in Washington and return to England to study for the Bar. Two years later, the mother bought a house in London and allowed her daughter to support herself by taking in lodgers. After three years, the mother attempted to evict her daughter as she had not yet successfully completed the Bar exams. A majority of the Court of Appeal found that the parties did not intend to create legal relations resulting in the mother being entitled to possession of the house. Fenton Atkinson LJ relied on the close relationship between the mother and daughter, stating that the daughter relied on the mother’s promise to support her studies while the mother relied on the daughter’s promise to study for the bar with due diligence. However, Salmon LJ dissenting on the issue as to whether there was a contract, found that there was a contract between the mother and daughter. Salmon LJ noted that the daughter was 34 years old and gave up her job to enter the contract. Salmon LJ ultimately found an implied term in the contract that the daughter was only to be paid until her studies were completed within a reasonable time “either by the student being called to the Bar or giving up the unequal struggle against the examiners.” As the daughter had not been called to the Bar following over five years of study Salmon LJ was of the opinion that this surpassed a reasonable timeframe, concluding that the daughter could not now recover anything further from that contract. It should be noted that Salmon dissenting represents a more pragmatic approach to intention to create legal relations between family relationships.
This approach was followed in this jurisdiction in Hynes v. Hynes where it was held an agreement between two brothers will be enforced. The High Court dismissed a plea that the blood relationship between the parties would result in the agreement being non-enforceable. Instead the court viewed the agreement objectively and declared the agreement between the brothers enforceable.
In contrast, in Haggar v. De Placido the plaintiff was seriously injured in a road traffic accident and required nursing care. The plaintiff agreed to pay his mother and brother a weekly amount as compensation for providing his nursing care. The agreement was formally created in writing. May J found that a contract did exist despite the family relationship. This case involves public policy issues on payment for damages. The contract between the plaintiff and his family members are created solely so he could sue for damages and compensate his mother for caring for him. May J made the analogy between a mother caring for her son and a circumstance where a mother would not be in a position to care for her son and instead would require care from a nurse. May J stated that in this circumstance the plaintiff would be entitled to recover for damages for the cost of nursing services. The court considering the public policy issues of recovering for the cost of nursing care following an accident was of the opinion that a plaintiff should be able to recover these costs regardless whether the nursing service was provided by a nurse or a family member. This case may be regarded as somewhat unique as the plaintiff had the foresight to create a contract with his mother to obtain these services with the prospect of recovering damages from the accident in mind. It is for this reason that the court was of the opinion that the principle purpose of the agreement between the son and his mother was to create legal relations. It must be noted that the plaintiff in this case was litigating against a third party, the person responsible for the road traffic accident. It is difficult to predict if the same decision would have been reached had the litigation been between family members.
Rogers v. Smith is a contrasting case to Haggar where the Supreme Court opted to refrain from trespassing into the realm of public policy and refused to uphold a promise from a mother to her son that the cost of supporting her would be made recoverable to him from her estate upon her death. The Supreme Court declined to hold the promise was seriously intended. The courts also took into account that the son stated that regardless of the promise he would have supported his mother anyway.
In the recent case of Coleman v. Mullen another public policy issue is determined by the High Court. In Coleman the plaintiff claimed for a quantum mercuit for the services provided to an elderly childless widow. In the Circuit Court the plaintiff was awarded €25,000 for the services rendered to the deceased widow. However, on appeal the High Court reversed the award due to the lack of intention to create legal relations. Hogan J noted that there are instances when the existence of a contract may be found even in family cases, however in such a case it would be necessary to provide clear evidence of an intention to create legal relations. Having heard the evidence from the plaintiff Hogan J was satisfied that there was no such intention to create legal relations. The High Court was unwilling to infer an intention to create legal relations as it may result in a far-reaching legal change breaching the separation of powers. The court stated that should there be a desire to change the status quo it would be a matter for the Oireachtas.
Commercial Agreements Between Family Members
Conversely to family agreements, when interpreting commercial agreements, the parties are presumed to intend to create legal relations. This raises the question how do the courts look on commercial agreements between family members?
In Simpkins v. Pays the defendant lived with her grandmother and a paying lodger. The three housemates regularly entered a competition in a newspaper without any agreement regarding payment of postage or the entry fee. On one occasion the grandmother won £750. The lodger sued for her share of the winnings. The court stated that the question was whether there was a syndicate between the parties. Seller J dismissed the argument that the familial relationship between the grandmother and her granddaughter did not create legal intent. The court found that such a syndicate did exist. The leading Irish case on this matter is Horan v. O’Reilly. This represents another public policy question as agreements of the nature in Simpkins and Horan are often loosely entered into with no defined terms. However, the court is arguably correct to find that the agreement contains an implied terms of a syndicate and that winnings should be divided equally as that is primarily the reason people willingly pay money into such agreements on behalf of others.
Commercial Agreements between Commercial Parties
When commercial agreements come into question before a court, the court will likely uphold the validity of the business transaction to avoid uncertainty of enforceability in what truly is a commercial contract. This was implemented in Edwards v. Skyways Ltd when a meeting between representatives of the defendant company and the plaintiff’s trade association of pilots agreed that pilots being made redundant would receive an “ex gratia” payment on leaving the company. The payment was to be the equivalent to the defendant’s contributions to the pension fund. The defendant failed to honour the payment. The plaintiff then sued for his payment. In everyday language an ex gratia payment is voluntary by the payer and not binding. Megaw LJ stated that the term ex gratia referred to the position before the plaintiff carried out his side of the agreement and not afterwards. The court ultimately found there was an intention to create legal relations. The outcome of the case may be regarded as serving justice as it would have been unfair for the plaintiff not to receive the ex gratia payment promised to him following his redundancy. However the court arguably over stretched the meaning of the term ex gratia to have changed in some way after the plaintiff fulfilled his side of the agreement. This was approved in Ireland in O’Rourke v. Talbot Ireland Ltd.
If it can be established that an agreement was not intended to create a legally binding contract, then even if it contains all the other elements necessary to create a binding contract it will not be held to be a legally enforceable contract. This was decided in Cadbury Ireland Ltd v. Kerry Co-operative Creameries Ltd the defendant promised to continue to supply milk to the plaintiff company. The defendant had acquired a small creamery, that previously supplied the plaintiffs with milk. Despite the clause being inserted into the contract, the parties had not relied on it to determine their rights and obligations after the agreement was signed, instead the parties evinced their intention to subsequently create clear and binding agreements that were ultimately never finalised. The formalising of a contract between the parties in this case was complicated by the involvement of the Minister for Agriculture and his desire to advance the greater public interest. In Cunard Steamship Co v. Revenue Commissioners the court also held a contract not to be legally binding as the parties had intended to create a subsequent contract. The cases of Cadbury and Cunard Shipping should be taken as exceptions and the general rule that agreements entered into between commercial entities will be presumed to create legal relations.
The recent decision by the Supreme Court of the United Kingdom in RTS Flexible Systems v. Molkerei Alois Muller GmbH reaffirmed that in considering whether a contract is binding the court will seek to establish objectively, what terms the party agreed, what consideration was communicated and whether by their words and actions the parties intended to create legal relations. The court also stated that terms that had not been agreed upon by the parties may be viewed not to be a precondition to the agreement and will not result in contract not being legally binding.
When commercial salesmen make vague and/or exaggerated claims in an advertisement, such statements are usually held to be statements of opinion and are not considered to form the basis of a binding contract. In Lexmead v. Lewis the court held that the use of language such as “foolproof” and “absolutely no maintenance” did not amount to legally contractual language and was mere puffery. Sales puffery is an everyday occurrence and it would result in an unimaginable amount of litigation should the courts recognise that the language used in advertisements result in an intention to create legal relations.
Express Exclusions of Enforceability
The courts will acknowledge the wishes of the parties and where they have expressly excluded enforceability of their agreement the courts will accept this. This was enforced by the English courts in Rose & Frank v. Crompton and would “no doubt” be followed in this jurisdiction according to Clarke.
These agreements often refer to labour conditions and pay deals in the industrial context between employers and trade unions. These “collective bargaining agreements” are enforceable when incorporated into individual contracts of employment an employer and an employee. However, this is increased difficulty with enforceability of such agreements between employer’s representatives and trade union negotiators. These agreements generally contain considerations of vagueness and ambiguous language of intention. In Kenny v. An Post an ad hoc arrangement between a supervisor and employees to have a paid fifteen minute break at a fixed time was deemed not to be an enforceable agreement as the supervisor could not create arrangements binding on the employer.
In Irish Pharmaceutical Union & Ors v. Minister for Health & Ors Macken J in the Supreme Court stated that “the dominant view appears to be that both parties to a collective bargaining arrangement do not intend to create legal relations” it will be ultimately matter “whether a collective bargaining type arrangement, however it is defined, is legally enforceable, even inter partes, has not been definitively determined in this jurisdiction”. However, this was not the issue in the case, the primary issue between the two parties was whether a term from a Memorandum created between the parties in 1971 had transferred to a 1996 Memorandum. The Supreme Court overruled the High Court decision on the basis that there neither party indicated an intention to transfer the term from the original memorandum to the new memorandum.
Due to their nature collective agreements are often deliberately loosely drafted containing ambiguous terms that can result in the agreements failing to satisfy the requirements for certainty of terms. Maguire notes the contrasting decisions of the courts in regard to collective agreements should focus the minds of parties entering a collective agreement to expressly state an intention to create legal relations.
Imprecise or Incomplete Terms
If an agreement exhibits an intention to create legal relations, it may be unenforceable for incompleteness or uncertainty to its terms. In Tolan v Connacht Gold Co-Operative Society Ltd Peart J in the Court of Appeal concluded that the document did contain an intention to create legal relations but the documents was incomplete and therefore unenforceable. Peart J noted it was incomplete due to its’ imprecise terms and lack of certainty.
Letters of Comfort/Letters of Intent
A letter of comfort is a term given to letters of assurance provided by a parent company in relation to a subsidiary company, or by a government body or state agency for a related body. The terms letters of comfort, letters of intent and assurance letters are all terms used interchangeably however, there are subtle differences. An assurance letter outlines the parent company’s position or intentions in the event that something should happen to the subsidiary company. A letter of comfort is often issued by a parent company who wishes to reassure a lender with respect to the debts of the subsidiary company without the parent company entering a contract guaranteeing those debts.
A comfort letter is not usually a contract, and so the parent company providing “comfort” does not actually guarantee anything. Although no guarantee is provided in a comfort letter they are used to put pressure on a parent company to honour its assurances perhaps for fear of negative publicity and reputational damage. There are a number of reasons companies issue letters of comfort in preference to entering into a contract, including: a third party wishing to avoid incurring legal liability under a guarantee or a party may not have the legal authority to enter into a guarantee due to limitations in its memorandum or articles. Letters of comfort are a contentious issue in contract law. If a comfort letter such as the case in Wilson Smithett & Cape (Sugar) Ltd v. Bangladesh Sugar and Food Industries Corp can be merely be interpreted as an acceptance of an offer then the use of any “cautionary or ambivalent” language will not result in the letter of comfort being viewed as having a lack of legal intent. In contrast a letter of intent seeks to exert influence on another entity to undertake work or incur an expense without offering or limiting liability to the entity. The party issuing the letter of intent often insists that liability turns on concluding a formal agreement in the future.
The leading case on this issue is Kleinwort Benson v. Malaysia Mining Corp Bhd. Ralph Gibson LJ held that a letter of intent did nothing more than add comfort but did not amount to a contract. Ralph Gibson LJ added that the letter of intent only held moral value but lacked any legal standing. A significant issue that determined the outcome of the case is the fact that the defendant had specifically declined to give a formal guarantee of their subsidiary’s debts.
Banque Brussels Lambert SA v. Australian National Industries has strikingly similar facts to Kleinwort Benson case Rogers CJ criticised the approach taken in Kleinwort Benson as too technical and unrealistic. Rogers CJ was of the opinion that commercial agreements should generally be given commercial effect. The court compared not acknowledging comfort letters as legally binding as holding them in purgatory or in a twilight zone. In Australian European Finance Corp v. Sheahan the decision of LJ Rogers in Banque Brussels Lambert SA was criticised for examining the agreement between the parties to the microscopic detail he himself had protested about. In Australian European Finance Corp the clauses in question were clearly of a tentative and non-promissory nature and so it was not necessary to considered the clauses when establishing if the clauses amounted to create legal relations.
ERDC Group Ltd v. Brunel University Judge Humphrey Lloyd QC stated that letters of intent can vary from simply letters of intent to binding contracts. Therefore, each letter of intent must be interpreted on the facts of the case and not on prior assumptions. In Shaker v. Vista Jet Group Holding SA a letter of intent was deemed to be void for uncertainty of terms, the term “reasonable endeavours in good faith” Teare J found the it was a term unenforceable by the courts.
In AC Controls Ltd v. BBC Thornton J summarised the following principles in relation to letters of intent:
- Following an analysis a letter of intent may give rise to a binding contract, if the language of the parties when interpreted objectively. If that contract is pending the entering a formal contract governing the agreement between the parties, it will be assumed reciprocal obligations defined by the terms of the document.
- Alternatively, the document may on an objective construction one party makes a standing offer to the other that it will remunerate the other party if it carries out a defined performance for service. However, the party is not obliged to perform the service and the reciprocal obligation to remunerate is limited by both the express and implied terms of that offer.
- It is possible for a contract to come into being without the finalisation of the signing and execution of the formal contract documents if a transaction is fully performed and all obstacles to the formation of a contract are concluded in the negotiations and in the performance of the contract.
- In construing and giving effect to the language of the letter of intent, it is necessary to consider the factual background that amounted to the creation of the letter of intent.
Judge Thornton QC held that the letter of intent in this case were unilateral offers that when accepted by the plaintiffs created contractual obligations. The learned judge further held that the language in the letters did not amount to giving the BBC a right not to pay for work that was completed. Contrastingly in Orion Insurance Plc v. Shere Drake Insurance Ltd it was held on the balance of probabilities that an agreement signed and entered into by both parties amounted to a “gentleman’s agreement”. Clarke is critically of Hirst’s J decision in this case stating that the courts should insist on express disclaimers, through an honour clause to prevent similar decisions of the court in future. On the one hand Clarke is correct to be critical of a court dismissing an agreement between two parties where one party has not fulfilled their side of the agreement however, it must be noted that the courts may be inflicting the burdens of the law on parties who had no intention of creating legal relations.
The courts have for the most part successfully attempted to provide clear and precise precedent on the array of issues surrounding the intention to create legal relations. The courts have been most successful in striking a balance between finding intention to create legal relations in familial agreements. In contrast, many courts have struggled to interpret commercial agreements with the same degree of consistency as commercial entities are acutely aware of the precise vagueness required to avoid create a legally binding contracting often on a weaker party to the contract. The Irish courts are on par with the common law counterparts on striking a balance on the various agreements that come under the remit of an intention to create legal relations.
 Clarke, Contract Law in Ireland (8th ed., Round Hall, 2016) at paragraph 3-01.
 Clarke, Contract Law in Ireland (8th ed., Round Hall, 2016) at paragraph 3-02.
 Emo Oil Ltd v. Sun Alliance and London Insurance plc  IESC 2.
 UPM Kymmene Corporation v. BWG Ltd, 11 June 1999 (IEHC).
 ICDL GCC Foudation FZ-LLC v. European Computer Driving Licence Foundation Ltd  3 IR 327.
 Investors Compension Scheme Ltd v. West Bromwich Building Society  1 WLR 896.
 ICDL GCC Foudation FZ-LLC v. European Computer Driving Licence Foundation Ltd  3 IR 327 at 352
 ICDL GCC Foudation FZ-LLC v. European Computer Driving Licence Foundation Ltd  3 IR 327 at 352
 Rainy Sky v. Kookmin Bank  1 All ER 1137.
 O’Rourke v. Talbot  ILRM 587.
 Boweman v. ABTA  CLC 451.
 Leahy v. Rawson, 14 January 2003 (IEHC).
 Clarke, Contract Law in Ireland (8th ed., Round Hall, 2016) at paragraph 3-10.
 Balfour v. Balfour  2 KB 571.
 Balfour v. Balfour  2 KB 571.
 Courtney v. Courtney  57 ILTR 42.
 Clarke, Contract Law in Ireland (8th ed., Round Hall, 2016) at paragraph 3-07.
 Merritt v. Merritt  1 WCR 1211.
 Shortall v. White  NSWCA 372.
 Jones v. Padavatton  1 WLR 328.
 Jones v. Padavatton  1 WLR 328 at 334.
 Hynes v. Hynes Unreported High Court December 21 1984.
 Haggar v. De Placido  1 WLR 716
 Rogers v. Smith Unreported, Supreme Court July 16 1970.
 Coleman v. Mullen  IEHC 179.
 Simpkins v. Pays  1 WLR 975.
 Simpkins v. Pays  1 WLR 975.
 Horan v. O’Reilly and Others  IESC 65.
 Edwards v. Skyways Ltd  1 All ER 494.
 O’Rourke v. Talbot Ireland Ltd
 Cadbury Ireland Ltd v. Kerry Co-operative Creameries Ltd  ILRM 77.
 Cunard Steamship Co v. Revenue Commissioners  IR 287.
 RTS Flexible Systems v. Molkerei Alois Muller GmbH  UKSC 14.
 Lexmead v. Lewis  AC 225.
 Rose & Frank v. Crompton  AC 445.
 Clarke, Contract Law in Ireland (8th ed., Round Hall, 2016) at paragraph 3-16.
 Kenny v. An Post  JISLL 187.
 Pharmaceutical Union & Ors v. Minister for Health & Ors  IESC 23.
 Cathy Maguire, “The Enforceability of Collective Agreements” (2016) 13(4) Irish Employment Law Journal at 97.
 Tolan v. Connacht Gold Co-Operative Society Ltd  IECA 131.
 Clarke, Contract Law in Ireland (8th ed., Round Hall, 2016) at paragraph 3-26.
 Wilson Smithett & Cape (Sugar) Ltd v. Bangladesh Sugar and Food Industries Corp  1 Lloyd’s Rep. 378.
 Clarke, Contract Law in Ireland (8th ed., Round Hall, 2016) at paragraph 3-28.
 Kleinwort Benson v. Malaysia Mining Corp Bhd  1 WLR 379.
 Banque Brussels Lambert SA v. Australian National Industries (1989) 21 NSWLR 502.
 Australian European Finance Corp v. Sheahan (1993) 60 SASR 187.
 ERDC Group Ltd v. Brunel University  BLR 255.
 Shaker v. Vista Jet Group Holding SA  2 All ER (Comm) 1010.
 AC Controls Ltd v. BBC (2002) 89 Con. L.R. 52.
 Orion Insurance Plc v. Shere Drake Insurance Ltd  1 Lloyd’s Rep. 465.
 Clarke, Contract Law in Ireland (8th ed., Round Hall, 2016) at paragraph 3-30.