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There are about four elements to a contractual relationship: offer, acceptance, consideration, and the intent to establish a legal relationship. You need to ha

by patio11 13y ago

There are about four elements to a contractual relationship: offer, acceptance, consideration, and the intent to establish a legal relationship. You need to have all four. Many people will, in loose conversation, throw out three of them (+), in such a way as to give their counterparty the impression that a contract exists. This is not always done in a malicious fashion -- in the rough and tumble of business negotiations sometimes one party thinks they're discussing options and another thinks they're discussing plans. Signing physical contracts -- which is often not actually required in contract law (though it can be for certain transactions in certain jurisdictions) -- gives both parties an unambiguous, socially-ironclad touchstone that says We Are Engaged In Serious Business. If you're willing to sign something, you're willing to be bound, if not, you aren't. + "I was wondering if you gave any thought to the consulting proposal, for 2 weeks at $20k a week?" "We want to do it." has offer and consideration but the acceptance and intent to create a contract are ambiguous. It's entirely possible for one side of the negotiation to think "Sweet, it's on" and the other side to think "For God's sake, that was a pleasantry!" Some people feel that certain online relationships would be improved by physical or physical-like contract signing, for the solemnization aspect. I've wrestled with this myself. For example, medical providers can't use Appointment Reminder without agreeing to a Business Associates Agreement. The BAA is not your bog-standard clickwrap ToS -- in event of a breach or HIPAA violation it could be at the center of a $X00,000 enforcement action. I currently force people to actually print and sign contracts rather than doing the clicky-clicky thing just to convey to them Yes This Is Official.

dctoedt 13y ago
> There are about four elements to a contractual relationship: offer, acceptance, consideration, and the intent to establish a legal relationship. You need to have all four. This is close, but the part about intent is not quite the way courts approach such questions under Anglo-American contract law. The issue of intent is subsumed in the issues of offer and acceptance. Importantly, intent is addressed from an objective perspective; the parties' subjective intentions generally don't matter. Generally speaking, if a person takes an action that, viewed objectively, looks like an offer or an acceptance, then the person's subjective intention is not relevant. [1] An edge case is where one or both parties expressly state that they don't intend to be legally bound (for example, in a letter of intent). [2] That would normally be analyzed as, there was no offer, and/or no acceptance, because a reasonable person would not regard the parties as having assented to being bound. Which brings us to: > "We want to do it." has offer and consideration but the acceptance and intent to create a contract are ambiguous. It's entirely possible for one side of the negotiation to think "Sweet, it's on" and the other side to think "For God's sake, that was a pleasantry!" The issue here would be simply whether, viewed objectively, there was an acceptance. My guess is that most lawyers and judges would say no -- that We want to do it was not an acceptance, but was a non-binding "invitation to treat" [3]. [1] http://en.wikipedia.org/wiki/Offer_and_acceptance#Offer http://en.wikipedia.org/wiki/Offer_and_acceptance#Offer [2] http://en.wikipedia.org/wiki/Contract#Intention_to_be_legally_bound http://en.wikipedia.org/wiki/Contract#Intention_to_be_legall... [3] http://en.wikipedia.org/wiki/Offer_and_acceptance#Invitations_to_treat http://en.wikipedia.org/wiki/Offer_and_acceptance#Invitation...
SilasX 13y ago
So what benefit does solemnization provide beyond its facilitating authentication of the agreement to the contract? How could you provide authentication in a way that doesn't confirm you are in serious business?

by patio11 13y ago

dctoedt 13y ago

> There are about four elements to a contractual relationship: offer, acceptance, consideration, and the intent to establish a legal relationship. You need to have all four. This is close, but the part about intent is not quite the way courts approach such questions under Anglo-American contract law. The issue of intent is subsumed in the issues of offer and acceptance. Importantly, intent is addressed from an objective perspective; the parties' subjective intentions generally don't matter. Generally speaking, if a person takes an action that, viewed objectively, looks like an offer or an acceptance, then the person's subjective intention is not relevant. [1] An edge case is where one or both parties expressly state that they don't intend to be legally bound (for example, in a letter of intent). [2] That would normally be analyzed as, there was no offer, and/or no acceptance, because a reasonable person would not regard the parties as having assented to being bound. Which brings us to: > "We want to do it." has offer and consideration but the acceptance and intent to create a contract are ambiguous. It's entirely possible for one side of the negotiation to think "Sweet, it's on" and the other side to think "For God's sake, that was a pleasantry!" The issue here would be simply whether, viewed objectively, there was an acceptance. My guess is that most lawyers and judges would say no -- that We want to do it was not an acceptance, but was a non-binding "invitation to treat" [3]. [1] http://en.wikipedia.org/wiki/Offer_and_acceptance#Offer http://en.wikipedia.org/wiki/Offer_and_acceptance#Offer [2] http://en.wikipedia.org/wiki/Contract#Intention_to_be_legally_bound http://en.wikipedia.org/wiki/Contract#Intention_to_be_legall... [3] http://en.wikipedia.org/wiki/Offer_and_acceptance#Invitations_to_treat http://en.wikipedia.org/wiki/Offer_and_acceptance#Invitation...

SilasX 13y ago

So what benefit does solemnization provide beyond its facilitating authentication of the agreement to the contract? How could you provide authentication in a way that doesn't confirm you are in serious business?