§21. INTENTION TO BE LEGALLY BOUND
Neither real nor apparent intention that a promise be legally
binding is essential to the formation of a contract, but a manifestation of intention that a promise
shall not affect legal relations may prevent the formation of a contract.
b. Agreement not to be
legally bound. Parties to what would otherwise be a bargain and a contract sometimes agree that their legal relations are not to
be affected. In the absence of any invalidating cause, such a term is respected by the law like any
other term, but such an agreement may present difficult questions of interpretation: it may mean
that no bargain has been reached, or that a particular manifestation of intention is not a promise;
it may reserve a power to revoke or terminate a promise under certain circumstances but not others.
In a written document prepared by one party it may raise a question of misrepresentation or
mistake or overreaching; to avoid such questions it may be read against the party who prepared it.
The parties to such an agreement may intend to deny legal effect
to their subsequent acts. But where a bargain has been fully or partly performed on one side,
a failure to perform on the other side may result in unjust enrichment, and the term may then be
unenforceable as a provision for a penalty or forfeiture....