Therefore in any battle of the forms it is the terms

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have accepted the seller’s counter-offer — and the contract is formed on the seller’s terms. Therefore, in any “battle of the forms” it is the terms on the last form that will become the terms of the contract. 3.2.5 Legal intention to be bound The need for contractual intention
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© Stephen Graw 2012 16 What distinguishes a legally enforceable agreement from a non-enforceable one is the parties’ intention to be contractually bound to honour their promises. Without an intention to be contractually bound there is no contract, only an agreement that is not legally enforceable (see the example used earlier about agreements to meet people after work for a drink or a walk). Consequently, when the courts are trying to decide whether a contract exists they must first determine whether the parties had the required contractual intention when they were negotiating. To assist the courts in determining this question there were until recently (ie until the High Court’s decision in Ermogenous v Greek Orthodox Community (2002) 209 CLR 95), two commonsense presumptions: with family and social agreements (where it is likely that the parties did not intend their agreement to have legal consequences), there is a presumption that the parties did not intend to be contractually bound. on the other hand, in business and commercial agreements (where legal obligation is obviously important to the parties), there is a presumption that they did intend to be contractually bound. In both cases the presumption could be rebutted by evidence proving a contrary intention but very clear evidence of that contrary intention is required. In Ermogenous v Greek Orthodox Community the High Court commented (at 105-106) that: “Because the inquiry about [legal intention] may take account of the subject matter of the agreement, the status of the parties to it, their relationship to one another, and other surrounding circumstances, not only is there obvious difficulty in formulating rules intended to prescribe the kinds of cases in which an intention to create contractual relations should, or should not, be found to exist, it would be wrong to do so. … In this context … there is frequent reference to 'presumptions'. … For our part, we doubt the utility of using the language of presumptions in this context. At best, the use of that language does no more that invite attention to identifying the party who bears the onus of proof". It therefore seems that, in Australia, the question of whether the parties had the requisite legal intention will now be determined—as has been the question of their intention in all other contractual contexts—by looking at what they said, at what they did and at the circumstances in which they reached their agreement to ascertain, as objectively as possible, whether they truly intended it to be contractual.
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