United States Law/Contract
Contracts are promises that the law will enforce by providing remedies when performance is breached. Generally, an enforceable contract is formed by the mutual assent of the parties to exchange consideration, which means that each party agrees to undertake some legal detriment at the inducement of the other, with the ultimate goal of moving goods or services to the party that values them the most. A "legal detriment" is simply the relinquishment of some legal right, which may be something so simple as the right to spend one's money on something else. It may also mean that the party undertaking the detriment forbears from doing something he or she could otherwise rightly do.
- 1 Sources of Law
- 2 Choice of Law
- 3 Mutual Assent
- 3.1 Offer
- 3.1.1 Requirements of a Valid Offer
- 3.1.2 Termination of an Offer
- 3.1.3 Option Contracts
- 3.2 Acceptance
- 3.1 Offer
- 4 Consideration
- 5 Remedies (or Damages)
Sources of Law
Uniform Commercial Code (U.C.C.)
The Restatement (Second) of Contracts
Choice of Law
In the United States, there are two bodies of law that govern contracts. Contracts for the sale of goods are governed by the Uniform Commercial Code; all other contracts are governed by the common law.
The Uniform Commercial Code defines goods as things movable at the time of identification to the contract. This includes the unborn young of animals, timber, growing crops, or other items that are severed from real property by the seller. (Items to be severed from real property by the buyer are not governed by the Uniform Commercial Code because such a contract is considered an interest in real property, not a contract for the sale of goods.)
Predominant Factor Test
If the subject matter of the contract is mixed, including both goods and non-goods, such as services, the court will apply the predominant factor, or "Bonebrake," test in order to determine which laws apply. In order to determine the body of law that governs the contract, the court will look to the predominant objective of the buyer. If the buyer is predominantly seeking to acquire goods and the non-goods are merely incidental to that objective, then the court will apply the Uniform Commercial Code. If the buyer is predominantly seeking to acquire non-goods and the goods are merely incidental to that objective, then the court will apply the common law.
If the contract is governed by the Uniform Commercial Code, there are situations where the rules for merchants differ from the rules for non-merchants. Thus, it is important to determine whether the parties to the contract are merchants.
The Code defines a merchant as one who deals, as either a buyer or seller, in goods of the kind involved in the transaction, or who by occupation holds him- or herself out as having knowledge or skills particular to the goods or practices involved in the transaction, or who employs someone, such as a broker or other intermediary, to do so.
Mutual assent is most easily demonstrated by the ritual of offer and acceptance, but may also be established by the prior course of dealing between the parties to the contract.
An offer is a manifestation of willingness, by word or by conduct, to enter into a bargain. It must be made in such a way as to justify its recipient in the reasonable belief that assent to the terms of the offer is invited and that assent will form a legally enforceable contract. The party that makes the offer is the "offeror" while the recipient of the offer is the "offeree."
The offeror need not intend for his or her words or conduct to manifest a willingness to enter a bargain; if a reasonable person in the position of the offeree would recognize the words or conduct of the offeror as an offer, then a valid offer exists.
Requirements of a Valid Offer
An offer must be sufficiently certain to enable a court to determine a breach and provide a remedy. Generally, an offer must identify the parties to the contract and name the substance of the consideration. Where other terms are left out, the court may look to the totality of the circumstances to determine the intent of the parties regarding those terms. For instance, an offer may not name a specific time for performance, but if a dispute arises the court may look to the facts of the situation in order to determine a reasonable time for performance.
Termination of an Offer
An offer creates in the offeree a power of acceptance that may be terminated by a variety of acts or events. However, so long as the power of acceptance persists, the offeree may manifest his or her assent to the terms of the offer and complete the formation of an enforceable contract.
Expiration of Time
An offer persists only for the time stated, or for a reasonable time, if no time is stated. A reasonable time is determined by the circumstances. Generally, in negotiations face-to-face or by telephone or other immediate forms of communication the offer is terminated when the parties discontinue negotiations. Where the parties negotiate by methods that are not immediate, the offer will probably persist for a longer time.
Where contracts involve the purchase or sale of commodities, securities, or goods that fluctuate rapidly in price, a reasonable time is normally very short, particularly when the contemplated transaction involves a fixed price.
At any time prior to acceptance by the offeree, the offeror may revoke the offer, thus terminating the power of acceptance. Revocation may be direct or indirect. A direct revocation is a communication that is a manifestation of unwillingness to enter the proposed bargain. An indirect revocation occurs where the offeror takes some definite action that is inconsistent with the offer remaining open and the offeree learns of this by a reliable source. However, an offeror would not be wise to rely on indirect revocation; a direct revocation is much more certain.
An unequivocal rejection by the offeree of the terms of the offer will terminate the power of acceptance. Under irrevocable offers, or option contracts, a rejection will not terminate the power of acceptance unless reasonably relied on by the offerer in good faith, and then only to the extent to avoid injustice.
A counteroffer is a communication by the offeree that proposes to add, subtract, or modify the terms of the offer. Thus, it is functionally equivalent to a rejection of the original offer and the creation of a new offer, which creates a new power of acceptance in the party that had been the offeror.
An offeree need not intend for his or her communication to be a counteroffer; a communication by the offeree that purports to be an acceptance but adds, subtracts, or modifies the terms of the offer is a counteroffer.
When a counteroffer consists of changes to the terms of the original offer (rather than a proposal of completely new terms), this is also known as a conditional acceptance.
Death or Incapacity
The death or incapacity of the offeror terminates the power of acceptance.
An acceptance of the offer terminates the power of acceptance..
In order to avoid the termination of an offer by a lapse of time, an offer may be held open by an option contract, which is a new contract between the parties to the underlying contract. There are several ways to create an option contract.
Option by Consideration
The simplest way to create an option is by paying consideration. That is, the offeree pays something to the offeror in exchange for the offeror's relinquishment of the power to revoke the offer. Thus, each party incurs a legal detriment.
The consideration need not be large and in a minority of jurisdictions an option may be created by nothing more than a signed writing that recites a purported consideration.
Where an offer invites acceptance by performance and the offeree begins to perform, the offeror must then allow the offeree a reasonable time to complete performance before revoking the offer, thus creating an option contract. This protects the offeree from providing a partial performance of his or her duties under the contract without receiving compensation.
Option by Promissory Estoppel
Where an offeror makes an offer that he or she intends or reasonably foresees will induce action or forbearance of a substantial character on the part of the offeree and the offeree acts or forbears to his or her own detriment, the offer will remain open to the extent required to prevent injustice.
Firm Offers under the UCC
Under the Uniform Commercial Code section 2-205, where a merchant makes an offer in a signed writing that states it shall remain open, the offer shall remain open for the stated time, or for a reasonable time, in neither case to exceed three months.
Acceptance of an offer is the manifestation of assent to the terms thereof, made by the offeree in a manner invited or required by the offer. Generally, a person only has the power of acceptance when the offer has been addressed to him or when he is a member of the class to which the offer has been directed. An offeree's power of acceptance is not assignable, except where the offeree has paid consideration to keep the offer open.
The offeree must know of the offer in order to accept it. For instance, if A and B simultaneously send the other an offer pertaining to the same matter with the same terms, no contract is formed until either A or B accepts the other's offer.
Communications of acceptance are effective upon dispatch. All other communications (rejections, revocations, counteroffers, etc.) are effective upon receipt.
A communication has been received when it comes into the possession of the person to whom it is addressed, or into the possession of an authorized agent of the person to whom it is addressed, or when it is deposited in a place that has been authorized for such communications by the person to whom it is addressed.
If an acceptance is lost or delayed, then no contract is formed.
If an acceptance is first sent by a slow method but a rejection is then sent by a quick method, a contract is still formed because the acceptance was effective upon dispatch.
If two parties send each other offers and then one of them decides to revoke its own offer before the other one accepts, there is no contract.
Method of Acceptance
Consideration is comprised of two elements:
- Each party must incur a legal detriment by promise or performance.
- The detriment incurred by each party must induce the promise or performance of the other.
This has been called reciprocal mutual inducement, or "reciprocal conventional inducement" (Oliver Wendell Holmes, Jr.).
A party incurs a legal detriment by doing or promising to do something he or she is not legally required to do, or refraining or promising to refrain from doing something he or she has a legal right to do.
Remedies (or Damages)
Puts the parties in the place they would be if the contract had been fully performed. For example, if a man agrees to sell a teenager a $5000 rock for $5 bird then decides not to, he would owe the teenager $4995 ($5000 - $5) in expectation damages.
Puts the parties in the place they were before the contract had ever existed. For example, if a man agrees with a boy to trade a hat for an apple and the boy spends $5 to buy the apple, but the man later decides not to trade, the man would owe the boy $5 in reliance damages.
The party who was unjustly enriched must pay the other party the amount he was unjustly enriched. For example, if a doctor performs an emergency procedure on an unconscious dying victim, the victim is liable for the medical fees for restitution damages.