Escolar Documentos
Profissional Documentos
Cultura Documentos
Lecturer: L. Burke
TABLE OF CONTENTS
Introduction ............................................................................................................................................................................... 3 Offer............................................................................................................................................................................................... 3 Acceptance ................................................................................................................................................................................. 4 Consideration ............................................................................................................................................................................ 4 Intention to create legal relations .................................................................................................................................... 5 Capacity ....................................................................................................................................................................................... 5 References .................................................................................................................................................................................. 6
INTRODUCTION
To understand the fundamental elements of the law of contract, it is important to obtain a comprehensive definition for the term contract. A common definition of the term is An agreement between two (2) or more parties which is enforceable by law". By this definition, it is understood that for a contract to exist, there must be an agreement but the agreement must be enforceable by law. According to (Denicola, 2004), for a contract to be enforceable by law, it must contain the following legal elements: 1. Offer 2. Acceptance 3. Consideration 4. Intention to create legal relations 5. Capacity In this paper, the researcher will explain each of these fundamental elements of the law of contracts in detail.
OFFER
According to (Emanuel, 2006), An offer is the manifestation of willingness to enter into a bargain. The author further went on to state that The offer justifies another person that his assent can conclude the bargain In other words, an offer is something that creates a power of
acceptance. A more common definition for an offer is; A definite promise or proposal made by the offeror to the offeree with the intention to be bound by such promise or proposal without further negotiation. The offer is usually the step preceding the acceptance.
ACCEPTANCE
This is essentially the second stage of the contract process. Emanuel (2006) defines acceptance as A manifestation of assent to the terms thereof made by the offeree in a manner required or invited by the offeror so that a binding contract is formed. Acceptance comes into existence after the offeree unconditionally accepts the offer.
CONSIDERATION
According to (Young, 2010) Consideration is the detriment to the promisee (in that the promisee parts with something of value) OR some benefit to the promisor (in that the promisor receives the value). Consideration may consist of money, goods, a promise or suffering some detriment (e.g. forbearance to sue). The author further stated that in law, consideration must be sufficient but need not be adequate. For example, Dave can sell his red BMW, which is worth $10 million to Jacqueline for a value of $10 and there is still a perfectly good contract between them. Once both parties have agreed and both have furnished consideration, there is a contract.
CAPACITY
Stone, 2003 stated that capacity is needed before an enforceable contract can be made. The author further stated that the issue can be viewed from the opposite point of view, that is; incapacity can be regarded as a vitiating factor which prevents a contract from being enforced. The law of contract recognizes that in some situations people need protection from themselves, in that they may enter into agreements which may not be to their benefit. The three principal types of incapacity are: being a minor (under 18); being mentally incapacitated; and being intoxicated.
REFERENCES
Denicola, R. (2004). The Law of Contracts: Pearls of Wisdom. In R. Denicola, The Law of Contracts: Pearls of Wisdom. Boston: Boston Legal Publishing. Emanuel, S. (2006). In S. Emanuel, Contracts. New York: Aspen Publishers . Stone, R. (2003). Contract Law Q&A 2003-2004. In R. Stone, Contract Law Q&A 2003-2004. London: Cavendish Publishing Ltd. Young, M. (2010). Contract Law: The Basics. In M. Young, Contract Law: The Basics. New York: Routledge-Cavendish.