2. Agreement

Contract Law ◽  
2018 ◽  
Author(s):  
Mindy Chen-Wishart
Keyword(s):  
Contract Law ◽  
Mirror Image ◽  
Objective Test

How does contract law determine whether the parties have committed to the contract and what each has committed to? This chapter discusses the following: the objective test of intentions; offer and acceptance; termination of the offer; assessment of the mirror image approach; certainty; intention to create legal relations; and restitution for benefits conferred in anticipation of contracts that do not materialise.

2. Objectivity in contract law

2021 ◽  
pp. 12-20
Author(s):  
Paul S. Davies
Keyword(s):  
Contract Law ◽  
Objective Test ◽  
Reasonable Person ◽  
Objective Meaning ◽  
The Way

This chapter provides an overview of the concept of objectivity. In contract law, the intentions of parties are generally judged by their words and conduct and their ‘objective’ meaning. This is known as the ‘objective test’. The contents of a contract are determined objectively. The best evidence that a term has been incorporated into a contract and that a contract is binding is through the parties’ signatures, although entirely oral contracts are equally possible. Contractual communications, whether oral or written, are generally to be understood in the way that a reasonable person in the position of the recipient would have understood them.

6. Mistake

Contract Law ◽  
2018 ◽  
Author(s):  
Mindy Chen-Wishart
Keyword(s):  
Contract Law ◽  
The Other ◽  
Objective Test ◽  
Common Mistake ◽  
Other Hand ◽  
Mistaken Assumption

A party who enters a contract on the basis of a mistaken assumption as to background fact can realistically complain that he or she should not have to take the normal responsibility for his or her apparent consent. On the other hand, the objective test of intentions renders mistakes irrelevant to the validity of contracts except in certain exceptional circumstances. The chapter explores how contract law balances these competing norms. It addresses the following questions: (1) When can a claimant escape a contract on the ground of a unilateral mistake as to terms, the nature of the document, or the other party’s identity? (2) When can a contract be rectified to correct a common mistake in recording it? (3) When can a claimant escape a contract on the ground of his or her mistaken assumption about the relevant facts? (4) What is the justification for any relief? (5) Is the current law satisfactory, and if not, how might it be developed?

The Principle of Good Faith in Contract Law

2018 ◽  
Author(s):  
Melvin A. Eisenberg
Keyword(s):  
Contract Law ◽  
Good Faith ◽  
Objective Test ◽  
Subjective Test ◽  
Fair Dealing ◽  
Objective Tests

It is a settled principle of contract law that a contracting party must perform her contractual duties in good faith. The meaning of the duty of good faith is complex. At a minimum, to be in good faith an actor must have acted in a way that she believed was proper, which is a subjective test. This subjective test is overlaid with several objective tests. First, it is not enough that an actor actually believed that her conduct was proper; her belief must be honest in the sense that it has some basis in morality. Next, although an actor's belief need not be reasonable to be in good faith, it must at least be rational. Finally, the duty of good faith includes the observance of reasonable standards of fair dealing—another objective test.

2. Agreement

2021 ◽  
pp. 21-88
Author(s):  
Robert Merkin ◽  
Séverine Saintier
Keyword(s):  
Case Law ◽  
Contract Law ◽  
Mirror Image ◽  
Good Faith ◽  
The Subject ◽  
Selection Of

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.

2. Objectivity in contract law

2018 ◽  
Author(s):  
Paul S. Davies
Keyword(s):  
Contract Law ◽  
Objective Test ◽  
Reasonable Person ◽  
Objective Meaning ◽  
The Way

This chapter provides an overview of the concept of objectivity. In contract law, the intentions of parties are generally judged by their words and conduct and their ‘objective’ meaning. This is known as the ‘objective test’. The contents of a contract are determined objectively. The best evidence that a term has been incorporated into a contract and that a contract is binding is through the parties’ signatures, although entirely oral contracts are equally possible. Contractual communications, whether oral or written, are generally to be understood in the way that a reasonable person in the position of the recipient would have understood them.

2. Agreement

2021 ◽  
pp. 31-96
Author(s):  
Robert Merkin ◽  
Séverine Saintier ◽  
Jill Poole
Keyword(s):  
Contract Law ◽  
Mirror Image ◽  
Gap Filling ◽  
Difficult Question ◽  
The Law

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.

Formation of Contract in Japan

2018 ◽  
Author(s):  
Yoshikazu Yamashita
Keyword(s):  
Common Law ◽  
Contract Law ◽  
Mirror Image ◽  
Good Faith ◽  
Contract Formation ◽  
Major Reform ◽  
Consumer Contracts ◽  
The Common ◽  
Japanese Law ◽  
Formal Requirements

This chapter provides insights into the law on contract formation in Japan. The Japanese approach is traditional, requiring an agreement which, in turn, normally requires an offer and matching acceptance, according to the mirror image rule. Once offers become effective, the 1898 Japanese Civil Code severely restricts their revocability. This is in tune with the mostly German origins of Japanese contract law. However, the drafters of the Code deliberately followed the common law in one respect: the offeree’s acceptance becomes effective as soon as it is dispatched. This is highly controversial and in 2001 was abolished for acceptances by electronic means. Ongoing major reform of Japanese contract law will probably extend this solution to all contracts. Japanese law has no doctrine of consideration and has traditionally eschewed formal requirements as a prerequisite for the validity or enforceability of contracts. More recently, formalities have been introduced, first, for certain consumer contracts, then for contracts of suretyship. A particular feature of Japanese law pertaining to contract formation is the strong duty to negotiate in good faith.

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