Contract Law

A contract intends to formalize an agreement between two or more parties, in relation to a particular subject. Contracts can cover an extremely broad range of matters, including the sale of goods or real property, the terms of employment or an independent contractor relationship, the settlement of a dispute, and/or ownership of intellectual property created as part of a work for hire.

The Elements of a Contract

In order to be enforceable, a contract must involve the following elements:

A Mutual Consent

The parties to the contract must have a mutual understanding of what the contract entails. For example, in a contract for the sale of a tractor, if the buyer believes he will obtain a tractor and the seller believes he is contracting to sell a barn, there is no meeting of the minds and the contract will likely be held unenforceable.

Offer and Acceptance

A contract involves an offer (or more than one offer) to another party, who accepts the offer. For example, in a contract for the sale of a juke box, the seller may offer the juke box to the buyer for $2,000.00. The buyer's acceptance of that offer is a necessary part of creating a binding contract for the sale of the juke box.

A counter offer is not an acceptance, and will typically be treated as a rejection of the offer. For example, if the buyer counter-offers to purchase the juke box for $900.00, that typically counts as a rejection of the original offer for sale. If the seller accepts the counter-offer, a contract may be completed. However, if the seller rejects the counter-offer, the buyer will not ordinarily be entitled to enforce the prior $2,000.00 price if the seller decides either to raise the price or to sell the juke box to somebody else.

Mutual Consideration

In order to be valid, the parties to a contract must exchange something of value. In the case of the sale of a juke box, the buyer receives something of value in the form of the juke box, and the seller receives money.

While the validity of consideration may be subject to attack on the basis that it is illusory (e.g., one party receives only what the other party was already obligated to provide), or that there is a failure of consideration (e.g., the consideration received by one party is essentially worthless), these defenses will not let a party to a contract escape the consequences of bad negotiation. For example, if a seller enters into a contract to sell a juke box for $300.00, and later gets an offer from somebody else for $800.00, the seller can't revoke the contract on the basis that the juke box was worth a lot more than he bargained to receive.

Performance or Delivery

In order to be enforceable, the action contemplated by the contract must be completed. For example, if the purchaser of a juke box pays the $2,000 purchase price, he can enforce the contract to require the delivery of the juke box. However, unless the contract provides that delivery will occur before payment, the buyer may not be able to enforce the contract if he does not 'perform' by paying the $2,000. Similarly, again depending upon the contract terms, the seller may not be able to enforce the contract without first delivering the juke box. In a typical ‘breach of contract’ action, the party alleging the breach will recite that it performed all of its duties under the contract, whereas the other party failed to perform its duties or obligations.

Also, the following elements may factor into the enforceability of any contract.

Good Faith

It is implicit within all contracts that the parties are acting in good faith. For example, if the seller of a barn knows that the buyer thinks he is purchasing a barn, but secretly intends to sell the buyer a cow, the seller is not acting in good faith and the contract will not be enforceable.

No Violation of Public Policy

In order to be enforceable, a contract cannot violate ‘public policy.’ For example, if the subject matter of a contract is illegal, you cannot enforce the contract. A contract for the sale of illegal drugs violates public policy and is not enforceable.

However, public policy can shift. Traditionally, many states refused to honor gambling debts incurred in other jurisdictions on public policy grounds. However, as more and more states have permitted gambling within their own borders, that policy has mostly been abandoned and gambling debts from legal enterprises are now typically enforceable.

Oral Contracts

There is an old joke that an oral contract isn't worth the paper it's written on. That's a reference to the fact that it can be very difficult to prove an oral contract exists. Absent proof of the terms of the contract, a party may be unable to enforce the contract or may be forced to settle for less than the original bargain. Even when there isn’t an opportunity to draft up a formal contract, it’s good practice to always make some sort of writing, signed by both parties, to clarify the terms of an agreement.

Under some circumstances, if the terms of an oral contract can be proved or are admitted by the other party, an oral contract is every bit as enforceable as one that is in writing. There are statute of fraud laws which hold that some contracts cannot be enforced unless reduced to writing and signed by both parties.

Although sometimes an oral contract is referred to as a verbal contract, the term oral means spoken while the term verbal can also mean ‘in words.’ Under that definition, all contracts are technically ‘verbal.’ If you mean to refer to a contract that is not written, for maximum clarity it is helpful to refer to it as an ‘oral contract.’

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