Tuesday 8 May 2007

Contract -> An Offer

A contract may be defined as an agreement between two or more parties that is intended to be legally binding.

The first requisite of any contract is an agreement (consisting of an offer and acceptance). At least two parties are required; one of them, the offeror, makes an offer which the offeree, accepts.

The first stage in any contractual dispute is to establish if a contract actually exists. Which will depend on its formation, based on three key ingredients:

  • Agreement: based on mutuality over terms, agreement exists when a valid acceptance follows a valid offer. An offer is simply a statement of willingness to be bound by the terms of an offer.
  • Consideration: given by both sides, the quid pro quo, the proof that the bargain exists or “the price of the promise” (Dunlop v Selfridge) by doing some act.
  • Intention to create legal relations: since contract is legally enforceable.
An offer is an expression of willingness to contract made with the intention that it shall become binding on the offeror as soon as it is accepted by the offeree.

A genuine offer is different from what is known as an "invitation to treat", ie where a party is merely inviting offers, which he is then free to accept or reject.

The following link will show a more detailed diagram.

Offer: a statement of willingness to be bound by the terms of the offer.

Consideration: given by both sides, the quid pro quo, the proof that the bargain exists and “the price of the promise” (Dunlop v Selfridge) by doing some act.

Acceptance: an unequivocal expression of intention to agree to the exact terms of the offer which is then communicated.

Invitation to treat: indication by the maker of willingness to receive offers (negotiations). ITT lacks the required intent and specificity to be an offer.

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