While it may not be the most romantic way to look at it, no one can deny that a relationship is very much like a contract. There are parties, obligations, breaches that may or may not invite termination, and behind it all, the fundamental principle of agreement.
Whether you’re loved up today or feeling like a certain someone puts the ‘douche’ in ‘fiduciary’, here’s how contract law works in relationships…
Fidelity as an Intermediate Term
I was discussing with a friend whether she really had to tell her girlfriend that she’d kissed someone else. We applied contract law to the situation, relying on the difference between terms and conditions: fidelity in a relationship is an intermediate term. It isn’t necessarily a condition (breach of which would give rise to a right to terminate the relationship); rather, it carries the meaning ascribed to it by the parties.
Fidelity might be a condition in some relationships but for my friend, its role in hers as an intermediate term provided the justification she was looking for to avoid revealing the indiscretion…
Conditional Acceptance – Who Asked the Other Out?
Before my boyfriend and I were properly dating, we’d been hanging out and he mentioned that he’d like me to be his girlfriend. At the time I wasn’t sure if I wanted to, so I told him I’d like things to stay the way they were for the time being and think about it. A week later I realised I in fact did want to accept, so I mentioned this to him, and now I tell friends our romantic story of how he asked me out.
However, he disagrees and maintains that my acceptance in fact constituted a new offer as it changed the terms of his offer – because of the conditional acceptance rule, I was the one who asked him out.
Near Enough is Good Enough
I find myself far too frequently relying on the decision in Startup v Macdonald to justify underperforming in my relationship. In this case the court held that an attempt to deliver goods constituted performance of a contract, as the delivery person was prevented from delivering the goods because of the time of delivery.
What was important was that he intended to complete the delivery – a principle I've threaded through a number of excuses for being lazy: thinking about offering a late-night pickup is the same as doing it; intending to bake cupcakes is equivalent to turning up with sweet treats. I’m not denying it’s a long bow to draw but once you start using the excuse, you’ll find it difficult to stop.
Damages Available for Breach
In a healthy relationship no argument will remain unresolved. Breach will inevitably result in some kind of retribution, with the injured party seeking redress from the other. The damages awarded for breach are directly proportional to the breach: forgetting an anniversary might result in an award of flowers, secretly seeing an ex-partner could grant jewellery-related relief while an act of infidelity may grant the right to terminate (or not: see point 1).
So whether you’re half of a partnership, flying solo or feel like you’re married to your law degree this Valentine’s Day, remember you can always use contract law to figure out your complicated law student love life.
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