Legal writers generally emphasise that in order that a contract in the eye of the law can come into existence, there should be an intention (on the part of the parties), to enter into a legal relation. [Law Revision Committee (UK), 6th Interim Report, page 15]. In Roman Dutch law also, the proposition is recognised, that either such an intention must exist, or there must be circumstances from which it can be presumed. [Lee, Roman Dutch Law (5th ed.) pages 220, 221, cited by Weeramantry, page 155 footnote 1].

Normally, the doctrine does not receive separate treatment in common law because, at common law “consideration” (which is an essential component of contract in law) ensures that the parties were serious about the transaction entered into. Nevertheless, there are cases where this aspect may become relevant, even in common law [Cf. Balfour v. Balfour, (1919) 2 K. B. 571].

Besides this, there do arise situations where, though there is a vague desire to enter into a contract at a future date, there may be no firm resolve present to enter into a legally binding agreement. [Cf. Rose and Frank v. Crompton, (1923) 2 KB 261; on appeal (1925) AC 445 (HL)].

So far as Roman Dutch law (which is, by and large followed in Sri Lanka on matters and expressly subjected to English law) is concerned, it does seem to recognise that “the evidence should establish clearly that the intention of the parties was to create a legal obligation” [Lee, Roman Dutch Law, 5th ed. page 221; Weeramantry, page 156 and footnotes 7 and 8].