A national contract is not binding where it can be proven that it was signed under duress or is grossly unfair, or if one of the two persons has not provided the other person with a full financial disclosure. However, courts give competent adults a high degree of autonomy to adopt their own rules, however unfair they may be, so it can be difficult to identify any of these reasons for the cancellation of a domestic contract. That is why legal advice before the agreement is signed is so important. However, where there is a clear contractual liability, the presumption is rebutted. In Merritt/Merritt, a separation agreement between insane spouses was enforceable. At Beswick v. Beswick, an uncle`s agreement to sell a coal delivery to his nephew was enforceable. Even at Errington v. Errington, a father`s promise to his son and daughter-in-law to live in a house (and ultimately own) if they had paid the rest of the mortgage was a one-sided contract enforceable.
In both cases, the document signed by counsel is attached to the national contract and may later constitute important evidence in the event of a dispute over the agreement. The concept of a “national” agreement should be more related to the purpose than to the relationship between the parties. For example, if a woman agrees to sell her car to her brother for $1,500, there is little reason to deny contract status to that agreement and it must be considered binding unless there is evidence to the contrary. However, Sadler/Reynolds (2005) suggests that there may be situations that fall into a kind of “half-house” between housing and commercial enterprises, which undermines the burden of the presumption. In this case, there was an alleged contract between a journalist and a businessman who was a friend. The journalist wanted to write the businessman`s autobiography “rags to rich” and share the profits. Instead, the businessman chose another author. The judge suggested that the oral agreement fell “somewhere between a patently commercial case and a social exchange.” It is necessary to prove to the journalist that there is an intention to establish legal relations “although the obligation is less onerous than that which would be necessary to establish such an intention in the context of a purely social relationship”. A marriage contract is very similar to a cohabitation contract, except that it applies to people who are married or wish to marry. In Balfour v Balfour (1919), an agreement was reached between a man and a woman, which resulted from their inability (due to illness) to return with him to his work in Ceylon. He agreed to pay her $30 a month while they were separated.
The marriage broke down later and the woman sued the man for non-payment of promised payments. Although conjecture is no longer used, in reality, in most national or social agreements, the parties generally do not intend to forge legal ties, at least if the agreement is reached when relations are harmonious.