Contract: -legally enforceable agreement between two or more lagally distinct parties. -Binding and legal agreement between 2 or more parties -Court must be convinced that failure to comply with an agreement will lead to one of the parties to suffer prejudice. Court will protect innocent party, will provide remedy -formed when a definite offer is met by unqualified acceptance (Consensus in idem : “Meeting of minds”) -Parties have rights and duties. -Composition: offer + acceptance -can be written, verbal or implied -parties bring consideration to the bargain -formed when offer meets unqualified acceptance -can be formed verbally (no formality required). Better in writing – less potential for disagreement (Gordon Greg) and easier for court to look ta evidences -up to the individual to decide whether they contract or not and on what term (McMillan) -consensus in idem + consent + capacity + formality + legality (McMillan) -Consensus in Idem: agreement about the same thing. (mcmillan) -Consent: intention to be legally bound (mcmillan) -Capacity: ability to undertake legally binding obligations (mcmillan) -Formality: most contract don’t have to be in writing or witnessed 9mc millan) -not illegal: pacta illicita are agreements prohibited by law and wont be enforced by courts (mcmillan) -Person making the ofer is offeror, the other offeree (Black) -contrct ia a voluntary obligation (Macqueen) -formed when parties have reached agreement on essential terms and have intention to create legal obligation. parties, obliged to perform o... ... middle of paper ... ... acceptance,(macqueen) Counter offer:-Response to an offer which seek to adapt in any way or add to the conditions of the original offer. -cancel the original offer. No subsequent acceptance of original terms will be valid -qualified acceptance -despite the fact that it is not expressed as an outright rejection -If person receives the offer accept itbut wishes to add condition of his own, that reply is a qualified acceptance. It does not conclude a contract. it amount to a rejection of the offer. It creates a counter offer(Black) -Conditional acceptance: includes new terms that are not contained in the offer (viewed as new offer that must be accepted). CASES: -Littlejohn v Hawden (1882) : Unilateral promise to keep offer opened -A &g paterson v highland railway co. 1927 SC (HL): keep offer open
Whether oral or written, the contract must manifest a mutual intent to be bound expressed in a manner capable of being understood, and include a definite offer, unconditional acceptance and consideration.” (Express Contract 2016) The above definition is a much clearer explanation with key elements outlined; 1. mutual intent, 2, expressed in a manner capable of being understood, 3. definite offer, 4. unconditional acceptance and 5. Consideration.
This principle is called as "mirror image rule." Significantly, common law counteroffers that would been considered rejections and/or counteroffers are converted into acceptances under the UCC. To the UCC, it recognizes the existence of a contract even if the acceptance contains additional or different terms from those of the offer. This occurs because the acceptance reveals intent to contract that not expressly conditions the original offeror to agree to additional or different
An acceptance is “a final and ineligible expression of assent to the terms of an offer”. Acceptance of an offer can be tenacious through the following guidelines: (1) the acceptance must be communicated with the intention of both parties to enter a mutual contract; however, the offer may be revoked prior to acceptance, (2) the offer can only accept the initial terms and can only be accepted by the intended offeree, (3) the offeree must accept the terms through a concrete method if authoritatively mandated by offeror. [Contracts Law: Offer and Acceptance]. Pine Trees failed to mention/incorporate their disclaimer of consequential damages in the initial terms, engendering a counter offer. (Aguilar Manufacturing v. Richfield)
If the acceptance doesn't “mirror” the offer, we don't have a contract. Under the UCC, a different set of rules apply. First and foremost, we have to ask if other parties merchants are not. In any case when both parties are non-merchants, then any additional or contradictory terms are to be construed as proposals. They don't become part of the contract unless the other party specifically accept those terms. This rule applies to sales between a merchant and a non-merchant or two non-merchants. In any case when both parties are merchants, the UCC tells us that additional terms in acceptance between merchants become part of the sale contract; unless the offer saysaless the offeree can't add terms, or if the additional terms materially change the contract, or finally if the offeror opposes to the additional terms within a reasonable time
(b) the other party does make the contract in the course of a business; and
rule", The electronic formation of contracts and the common law: "mailbox. baylor law review. 8 april
The exclusion clause is an important device for allocating the risks between the contractual parties. However, the exclusion clauses could mostly be found in written contracts, especially standard form of contracts. Standard form contracts with consumers are often contained in some printed ticket, or delivery note, or receipt, or similar document. In practice, it is very common that if a person wants the product, he may have no alternative but to accept the terms drawn up by the other party even though such terms are disadvantage to him, or he may simply accept it regardless the possible unfavorable position because he does not trouble to read a long list of terms and conditions. Therefore, contracts are regularly signed, tickets are simply accepted, or a tick-box on a website is clicked, commonly between large companies and individual consumers.
Intention to create legal relations can be defined as follows. ‘An agreement will only become a legally binding contract if the parties intend this to be so. This will be strongly presumed in the case of business agreements but presumed otherwise if the agreement is of a friendly, social or domestic nature.’ Source (HNC unit 5 Business law course book) In determining whether the parties intend their agreements to be legally binding the court is guided by two presumptions. Parties to a domestic or social agreement do not intend to be legally bond. Parties to a business agreement intend to be legally bond. These are presumptions only and can be rebutted by sufficient evidence to the contrary. Domestic and Social Agreements Balfour v Balfour (1919) Merritt v Merritt (1976) Simpkins v Pays (1955) Business Agreements Jones v Vemons Pools (1938) Source (HNC Business law notes) One of the essential elements in the creation of a binding contract, this intention is implied by the fact that it is not expressly denied. If expressly denied (as in a so-called gentlemen's agreement) the contract may not be enforceable. Consideration {text:bookmark-start} {text:bookmark-end} If you look at a legal agreement or contract, you will generally see a phrase in the opening paragraph indicating that the parties agree on an amount of money or "other good and valuable consideration." The concept of consideration has a long history in the law, but simply means something of value. An exchange of consideration between the parties to an agreement is necessary fo...
This is an expression of willingness to contract made with the intention (actual or apparent) that it shall become binding on the offeror as soon as the person to whom it is addressed accepts it.
This judgment given set criterion which is still been used in the modern court system and due to this case it was developed that an offer of contract can be unilateral and doesn’t have to be made to a specific party only. Also it was developed to that the acceptance of an offer does not require a notification and that once the concerned party purchases the product the contract is active then and there itself. And it was also established that purchase of an item is a fine example of consideration and therefore makes it a valid contract. (Smith, 2000).
One of the biggest challenges in business communication is obtaining agreement. I'm not referring to everyone agreeing to a decision, with marching orders that move them forward. What I'm referring to is agreement on terms, agreement on conditions of satisfaction, and agreement on time frames. Frankly, it's not that difficult to obtain agreement; the issue is that very few people take the time to gain agreement. We assume if we say something that the other person understands exactly what we mean.
Formalities – if formalities are prescribed for the formation of the contract , they must be observed.
Law for Business Students defines offer as a full clear statement of terms on which the offeror is prepared to do business with the person(s) to whom the offer is communicated. In Gunthing V Lynne [1831] it was stated that an offer cannot be vague. Acceptance is the unconditional assent to the terms
Agreement is a mutual understanding of two parties and willing to accept terms and conditions in order to form a legal contract (Penthony et al.2014). Agreement consists of two components; offer and acceptance. Offer is made by an offeror in an exchange for performance from another party on certain terms while acceptance is the action of accepting to the terms of the offer. An offer must follow the requirement in order to form
According to sub-clauses of the general conditions (63-1) and (63-2) which are relating to breach of Contract.