Law & Society I
M W 9:30AM, Snell 213
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John Exley, ID: 0160294
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Chapter 11: Agreement
A meeting of two or more minds in regard to the terms of a contract; usually broken down
into two events – an offer by one party to form a contract, and an acceptance of the offer by the person to
whom the offer is made.
The element of agreement in the formation of a contract. The manifestation of
parties’ mutual assent to the same bargain is required to establish a contract.
Section 1 – Requirements of the Offer
A promise or commitment to perform or refrain from performing some specified act in the future.
Under the common law, three elements are necessary for an offer to be effective:
The offeror must have a serious intention to become bound by the offer.
The terms of the offer must be reasonably certain, or definite, so that the parties and the
court can ascertain the terms of the contract.
The offer must be communicated to the offeree.
Serious intent is NOT determined by the
intentions, beliefs, and assumptions of the
offeror. …Under the
objective theory of contracts
, a party’s words and conduct are held to mean
whatever a reasonable person in the offeree’s position would think they meant.
Expressions of Opinion
An expression of opinion is NOT an offer.
Statements of Future Intent
A statement of an
to do something in the future is NOT an offer.
A request or invitation to negotiate is NOT an offer. It only expresses a willingness to discuss the
possibility of entering into a contract.
Agreements to Agree
Traditionally, agreements to agree – that is, agreements to agree to the material terms of a
contract at some future date – were NOT considered to be binding contracts.
The modern view, however, is that agreements to agree may be enforceable agreements
(contracts) if it is clear that the parties intended to be bound by the agreements. In other words,
under the modern view the emphasis is on the parties’ intent rather than on form.
In general, advertisements – including representations made in mail-order catalogues, price lists,
and circulars – are treated NOT as offers to contract but as invitations to negotiate.
In an auction, a seller “offers” goods for sale through an auctioneer, but this is NOT an offer to
form a contract. Rather,
it is an invitation asking bidders to submit offers.
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