Chapter 2: Contract Formation

Contract formation is the initial and crucial stage where parties create legally binding obligations.

Key elements of contract formation: offer, acceptance, and consideration.

Understanding these elements is essential to avoid defects that can render a contract unenforceable.

2.1 The Offer

An offer is a fundamental component in the formation of a contract.

It is a proposal made by one party (the offeror) to another (the offeree), indicating a willingness to enter into a legally binding agreement on specified terms.

Definition and Elements of an Offer

For an offer to be legally valid, it must include:

Intent to Be Bound: The offeror must intend to create a legal obligation.

Definiteness and Certainty: The terms of the offer must be clear and specific enough to be enforceable.

Communication to the Offeree: The offer must be communicated to the offeree, allowing them to accept or reject it.

Communication of the Offer

The offer must be communicated to the offeree to be effective.

This communication can be made in various forms—written, oral, or by conduct—and is effective once it reaches the offeree.

Intent to Be Bound

An offeror must intend to create a legal obligation and be bound by the terms of the offer upon acceptance.

This intent is assessed objectively based on how a reasonable person would interpret the offeror's words and actions.

Definiteness and Certainty

The offer must be clear enough so that the terms can be understood and enforced by a court.

This includes specifying the parties involved, the subject matter, the price, and the time of performance.

Duration and Termination of Offers

Offers do not last indefinitely. They can be terminated by:

Revocation: The offeror withdraws the offer before it is accepted.

Rejection: The offeree declines the offer.

Counteroffer: The offeree proposes a different deal, which terminates the original offer.

Lapse of Time: The offer expires after a reasonable time or a specified duration.

Death or Incapacity: The offeror or offeree dies or becomes legally incapacitated before acceptance.

Destruction of Subject Matter: The subject of the offer is destroyed before acceptance.

2.2 Acceptance

Acceptance is the offeree’s assent to the terms of the offer, resulting in a binding contract.

It must be unequivocal and communicated to the offeror.

Definition and Elements of Acceptance

Acceptance must meet the following criteria:

Unconditional and Unequivocal: The acceptance must match the terms of the offer exactly.

Communication to the Offeror: Acceptance must be communicated to the offeror unless the offer specifies otherwise.

Timing of Acceptance: Acceptance must occur within the timeframe specified by the offer or within a reasonable period.

Methods of Acceptance

The method of acceptance can be specified by the offeror or, if unspecified, can follow reasonable norms given the circumstances.

Common methods include:

Express Acceptance: Verbal or written communication of acceptance.

Implied Acceptance: Conduct that clearly indicates acceptance, such as beginning performance of the contract.

Silence as Acceptance: Generally, silence is not acceptance unless the offeree's previous conduct or the nature of the transaction justifies such an interpretation.

The Mirror Image Rule

Under the mirror image rule, the terms of the acceptance must exactly match the terms of the offer.

Any deviation constitutes a counteroffer, not an acceptance.

Communication of Acceptance

Acceptance must be effectively communicated to the offeror, adhering to any specified methods.

If the method is not specified, acceptance can be communicated through any reasonable means under the circumstances.

2.3 Consideration

Consideration is what each party gives up to support the promise of the other.

It is the exchange of value that makes a contract legally enforceable.