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CONTRACTS OUTLINE I. The Agreement Process A. Intent to Contract 1. Factors: Was the intent manifested, expressed, or communicated from an objective point of view? (1) Spoken or written words – do the words or actions of the party manifest an intent to contract from an objective reasonable 3 rd party point of view. Would a reasonable person in the plaintiff’s shoes think there was a contract? If the promisee knew the subjective intent of the promisor, the promisee will be charged with the superior knowledge of the promisor’s intent not to contract. (2) Based on the surrounding circumstances , would a reasonable person believe that there was a contract or that legal consequences would flow there from? This is on a case by case basis. B. The Offer 1. Factors to consider whether an offer was made: (1) Inquiries: whether the communication is an initial communication as opposed to an answer to an inquiry. An answer to an inquiry is more likely to be an offer. The language of the inquiry is also important. Does the inquiry ask for an offer? (2) The words used: are the words generally associated with promise or are they non committal. Ex. Doctor tells patient that he will be cured. If the words are expressed, the doctor might be bound but the law will not an implied promise due to the fact that he is a doctor. The words have to be expressed. See Hawkins v. McGee. (3) Definite terms: are the terms detailed or are only a few terms included? Do they include the quantity and quality terms? This usually arises with advertisements. If the ad or price quote is specific as to quantity, price, and quality, this is likely an offer because the terms are definite. (4) Real property or goods: courts are less likely to interpret a message about real property as an offer than a similar message about goods. (5) Relationship of the parties: husband and wife or other close bond. Difficult to find a contract when the bond is close. (6) Surrounding circumstances: for example, whether a physician is treating a patient under emergency conditions or not. In an auction scenario, the auctioneer invites an offer and is not making an offer to begin with. (with reserve). If there is an auction is without reserve, the
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auctioneer is making an offer and the buyer makes a conditional acceptance; conditional on a higher bid being made. (7) Usages of the trade: Prior practices of the parties (“course of dealing”) C. Intent to Memorialize 1. Will the parties only be bound when there is a signed writing that accurately portrays the terms or was there an intent to be bound without this writing and therefore a writing was intended to memorialize an already existing contract. 2. The court will look to 4 factors in deciding this issue: a. Agreement in principle – shows an intention to be bound without a writing. Is there an expressed reservation or that there is no agreement until the contract is in writing?
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