Chapter 11.docx - Ch 11 The Agreement An agreement is the first element of any contract The liability is consensual If either party refuses to perform

Chapter 11.docx - Ch 11 The Agreement An agreement is the...

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Ch. 11: The Agreement An agreement is the first element of any contract. The liability is consensual If either party refuses to perform their part of the agreement without a lawful excuse, the other party is entitled to recover damages in a breach of contract action The problem for the court is deciding what kinds of agreements are sufficient definite to warrant judicial relief if they are breached Intention of the Parties If the courts finds that their intentions were the same, then there is a contract o They look at manifested (or apparent) intentions- aka objective- that control rather than their subjective- aka secret- intentions Reasons to base these agreements on objective view: o 1. Virtually impossible for a judge to determine a person’s actual intent was a prior time o 2. It would be unfair to let someone indicate a particular intention to another person and then to come into court and claim that he or she did not mean what was apparently meant- reliable contractual relationships maintained Requirement of the Offer The offeror must manifest a definite, present willingness to enter into a contractual relationship with the other party o The manifestation can be called conditional statement There are requirements that must be met in order for a particular communication to achieve the legal status of an offer: o 1. A manifestation of an intention to contract o 2. A reasonably definite indication of what the offeror and the offeree are to do o 3. A communication of the proposal to the intended offeree The Intent to Contract Preliminary Negotiations Preliminary negotiations, dickering is not an offer If person A says “I will not sell my home for less than $56,000” and person B says “I accept your offer” a contract would not result since no offer was made in either case It gets complex with multiple offerees o If person A says “i hereby offer to sell my farm to you for $720,000” and the letter informs person B that this offer is being made to many potential purchasers- this letter is then merely preliminary negotiation o On the other hand, if the offer did not say that this offer was being made to others, then B can effectively accept Richards v. Flowers Plaintiff tells the defendant that they are interested in buying the defendants land
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The defendant says “okay, I want $4500 for the property” and the plaintiff accepts Result: there was not an offer made. This is mere negotiation. Other Evidence on the Question of Intent Courts will also look at: o 1. Evidence of a well-established custom in the industry in which the parties are members o 2. Evidence of a custom that these parties may have established between themselves in a series of previous similar transactions o 3. Evidence of the conduct of the parties both before and after the alleged agreement was made Ex: if a man gets so mad that he lost his harness that he says that he will offer $500 to whoever found the thief, the court held that this was not an
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