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Cover Poole's Casebook on Contract Law

2. Agreement  

Robert Merkin KC, Séverine Saintier, and Jill Poole

Poole’s Casebook on Contract Law provides a comprehensive selection of case law that addresses all aspects of the subject encountered on undergraduate courses. A contract is a legally enforceable agreement. This chapter explains how the existence of an agreement is determined. After considering how the courts assess whether an agreement has been, using subjective and objective methods, it discusses the precise criteria used to determine agreement, namely offer and acceptance. The chapter defines offers and distinguishes them from invitations to treat. It focuses on identifying acceptances and distinguishing acceptances from responses which are not a mirror image of the offer, such as counter-offers. Much emphasis is placed on explaining the communication principles applicable to acceptances—postal and instantaneous communications, including email. The chapter explains revocations of offers and the communication principles applicable to revocations. The courts will enforce an agreement only if it is sufficiently certain in its terms. This chapter therefore considers how the courts deal with vagueness and incompleteness, including agreements to agree and whether there can ever be a duty to negotiate in good faith. It also examines the position where there is no contract due to uncertainty, but there has been performance. Finally, the chapter distinguishes bilateral and unilateral contracts and the special principles applicable to unilateral contracts.

Chapter

Cover Poole's Textbook on Contract Law

2. Agreement  

Robert Merkin, Séverine Saintier, and Jill Poole

Course-focused and comprehensive, Poole’s Textbook on Contract Law provides an accessible overview of the key areas on the law curriculum. This chapter explains how to determine whether parties have reached an agreement. Traditionally, the existence of agreement is determined objectively on the basis of an offer and corresponding acceptance. However, this approach has been challenged for being artificial and inflexible, and even in the absence of these traditional criteria the courts have occasionally found agreement, particularly where there has been performance. For formation there needs to be an offer (as opposed to an invitation to treat) and that offer must be accepted before it has been rejected or otherwise lapsed. In order to be effective, offer and acceptance must be properly communicated, which normally means ‘received’. The chapter also considers the mirror-image rule, whereby an acceptance must be unconditional and correspond with the exact terms proposed by the offeror. This chapter also examines principles that determine when an agreement can be enforced with sufficient certainty and whether liability will arise in the absence of agreement. An apparent contract will be void if the terms are considered too uncertain or where there is no context for gap filling. But this must be balanced with the need to prevent the parties from using allegations of uncertainty to escape from bad bargains. This chapter therefore considers how the courts deal with the difficult question over agreements to agree.

Chapter

Cover Poole's Textbook on Contract Law

2. Agreement  

Robert Merkin KC, Séverine Saintier, and Jill Poole

Course-focused and comprehensive, Poole’s Textbook on Contract Law provides an accessible overview of the key areas of the law curriculum. This chapter explains how to determine whether parties have reached an agreement. Traditionally, the existence of agreement is determined objectively on the basis of an offer and corresponding acceptance. However, this approach has been challenged for being artificial and inflexible, and even in the absence of these traditional criteria the courts have occasionally found agreement, particularly where there has been performance. For formation there needs to be an offer (as opposed to an invitation to treat) and that offer must be accepted before it has been rejected or otherwise lapsed. In order to be effective, offer and acceptance must be properly communicated, which normally means ‘received’. The chapter also considers the mirror-image rule, whereby an acceptance must be unconditional and correspond with the exact terms proposed by the offeror. This chapter also examines principles that determine when an agreement can be enforced with sufficient certainty and whether liability will arise in the absence of agreement. An apparent contract will be void if the terms are considered too uncertain or where there is no context for gap filling. But this must be balanced with the need to prevent the parties from using allegations of uncertainty to escape from bad bargains. This chapter therefore considers how the courts deal with the difficult question over agreements to agree.

Chapter

Cover Poole's Casebook on Contract Law

2. Agreement  

Robert Merkin and Séverine Saintier

Poole’s Casebook on Contract Law provides a comprehensive selection of case law that addresses all aspects of the subject encountered on undergraduate courses. A contract is a legally enforceable agreement. This chapter explains how the existence of an agreement is determined. After considering how the courts assess whether an agreement has been, using subjective and objective methods, it discusses the precise criteria used to determine agreement, namely offer and acceptance. The chapter defines offers and distinguishes them from invitations to treat. It focuses on identifying acceptances and distinguishing acceptances from responses which are not a mirror image of the offer, such as counter-offers. Much emphasis is placed on explaining the communication principles applicable to acceptances—postal and instantaneous communications, including email. The chapter explains revocations of offers and the communication principles applicable to revocations. The courts will enforce an agreement only if it is sufficiently certain in its terms. the This chapter therefore considers how the courts deal with vagueness and incompleteness, including agreements to agree and whether there can ever be a duty to negotiate in good faith. It also examines the position where there is no contract due to uncertainty, but there has been performance. Finally, the chapter distinguishes bilateral and unilateral contracts and the special principles applicable to unilateral contracts.