The common intention of the parties in such a case is inferred by the court from the express terms of the contract and the surrounding circumstances, including the subsequent conduct of the parties.
22.
Because the creditor knows nothing of this, and because, therefore, the common intention of all parties is lacking, it may not be said that a new contract has been created.
23.
In those circumstances, it is in my judgment impossible to impute to them any common intention other than that she authorised Mr . Henning to raise the money by mortgage to the Society.
24.
Where one party was relying on the genuineness of an express term and the other party was disputing it, there was no need to show that there had been a common intention to mislead.
25.
It is sufficient that their common intention was such that a reference to such a possible situation by a hypothetical officious bystander would have evoked from them a prompt and unanimous assertion of the implied term.
26.
American officials had said earlier that those words would have to appear in any communique about common intentions of the talks, but the United States appears to have dropped that demand in final negotiations about the declaration.
27.
In this case Miss Milligan as defendant simply pleaded the common intention that the property should belong to both of them and that she contributed to the purchase price : she claimed that in consequence the property belonged to them equally.
28.
The Court of Appeal ruled that the claimant was entitled to a 50 % in the proceeds of sale from the property based upon a common intention based upon a statement that Mrs . Grant's name would appear on the title deeds.
29.
It is not necessary that the parties should have consciously envisaged the situation; it is sufficient that their common intention was such that a reference to such a situation by the hypothetical bystander would have obtained a unanimous assertion of the implied term.
30.
The relevant question was whether there was a common intention for Geary to have a beneficial interest in the property, applying " Jones v Kernott " [ 2011 ] UKSC 53, which must be determined objectively from the parties'conduct.
