Intention to contract: Public act or private sentiment?

Abstract

In this chapter, the author first considers the nature of the transition that has occurred from will theory to objectivism, with particular regard to commercial contracts. Secondly, she regards to the marriage contract, which is a very curious type of contract because of its status, or non-negotiable, elements. Thirdly, the author interrogates the resistance towards domestic contractualism. The contemporary legal approach to contract is significantly more pragmatic and purposive than that suggested by will theory. The conjunction of the Christian idea of marriage as a sacrament and the ascendancy of the will theory of contract contributed to the view that marriage was the most perfect form of contract. In view of the vagaries surrounding entry into marriage, the extent to which contractualism within marriage is permitted has remained uncertain, although greater autonomy is accorded the parties on breakdown of marriage.