## Introduction

Contract formation is about when a promise becomes legally enforceable. In US law, a contract usually requires four elements: offer, acceptance, consideration, and mutual assent. The parties must also have capacity, the agreement must be for a lawful purpose, and certain deals must be in writing.

Courts use an objective test to decide whether there was agreement. That means they look at words and actions, not private thoughts. You’ll often hear “meeting of the minds,” but the focus is on whether a reasonable person would view the parties as agreeing to the same terms.

This guide explains the core elements with clear examples, practical steps, and a quick reference you can use when reviewing real deals.

## What You'll Learn

- The basic elements of an enforceable contract: offer, acceptance, consideration, and mutual assent
- Capacity and legality requirements that can make or break an agreement
- When the Statute of Frauds requires a written, signed record
- Key differences between common law and the UCC (for sales of goods)
- Practical steps to document agreement and reduce disputes
- Real-world examples that show how courts evaluate contract formation

## Core Concepts

### Offer and Acceptance

Offer

- A statement that shows a willingness to be bound on specific terms if the other party accepts
- Needs definite terms (subject, quantity, price or pricing method, and timing where applicable)
- Ads are usually invitations to negotiate, unless they are clear, definite, and leave nothing open to negotiation
- Offers can end by revocation, lapse of time, rejection or counteroffer, death, or destruction of the subject matter
- Special rules:
  - Option contracts keep offers open if supported by consideration
  - UCC firm offers keep merchant offers open without consideration if in a signed writing (UCC 2-205)

Acceptance

- Must match the offer’s terms under the mirror image rule (common law)
- Can be by promise or performance, depending on the offer
- Silence is generally not acceptance, unless prior dealings or the offer specify and the offeree intends to accept by silence
- Mailbox rule: acceptance is effective on dispatch (exceptions apply)
- UCC 2-207 modifies the mirror image rule for goods: a definite and seasonable expression of acceptance can form a contract even if it includes additional or different terms, subject to specific rules for merchants

### Consideration

- A bargained-for exchange: each side gives or promises something of legal value
- Courts don’t weigh the adequacy of consideration, but the exchange must be real
- Not valid consideration:
  - Past acts (past consideration)
  - Preexisting legal duty (unless there’s new consideration or a legitimate dispute)
- Modifications:
  - Common law typically needs new consideration to modify
  - UCC allows good-faith modifications without new consideration (UCC 2-209)
- Alternatives when consideration is shaky:
  - Promissory estoppel may enforce a promise if there’s a clear promise, foreseeable reliance, actual reliance, and injustice without enforcement

### Mutual Assent (Meeting of the Minds)

- Objective test: would a reasonable person think the parties agreed to the same terms?
- Terms must be reasonably certain so the court can determine breach and remedy
- Ambiguity or misunderstanding:
  - If both parties attach different meanings to a key term and neither knows of the other’s meaning, there may be no contract
  - If one party knows or should know the other’s meaning, the innocent party’s meaning controls
- Mistake, fraud, and misrepresentation can prevent real assent:
  - Mutual mistake about a basic assumption may allow rescission
  - Fraud or material misrepresentation makes a contract voidable by the deceived party

### Capacity and Legality

Capacity

- Minors: contracts are generally voidable at the minor’s option (with exceptions for necessities)
- Mental incapacity: contracts may be void or voidable depending on the circumstances
- Intoxication: can void a contract in rare cases if the other party knew of the impairment

Legality

- Agreements for an illegal purpose or that violate public policy are unenforceable
- Unconscionability (procedural or substantive) can make a contract or term unenforceable

### Writing Requirements (Statute of Frauds)

When a writing and signature are required:

- Contracts for the sale of land
- Contracts that cannot be performed within one year
- Promises to answer for the debt of another (suretyship)
- Promises made in consideration of marriage
- Contracts for the sale of goods priced at \$500 or more (UCC 2-201)

What satisfies the Statute of Frauds:

- A signed writing by the party to be charged that reasonably identifies the subject matter and essential terms
- For goods, a writing indicating a contract for sale and quantity is usually enough

Common exceptions:

- Part performance of a land contract (e.g., payment plus possession or improvements)
- Specially manufactured goods under the UCC
- Merchant’s confirmatory memo (UCC 2-201(2))
- Judicial admission of the contract

Electronic contracts and signatures:

- E-SIGN Act and UETA give electronic records and signatures the same legal effect as paper and ink if parties agree to transact electronically

## Key Examples or Case Studies

- Alice and Bob (offer and acceptance)
  - Alice offers to sell her bike to Bob for \$200. Bob says “I accept.” Clear offer and acceptance. If Alice says the offer is open until Friday and revokes on Thursday before Bob accepts, there’s no contract unless Bob had an option supported by consideration.

- Smith v. Johnson (consideration)
  - Smith promises to paint Johnson’s house in exchange for \$500. Each side gives something of value: labor for money. Valid consideration.

- Doe v. Roe (mutual intent)
  - Both sign a residential lease with definite terms, showing intent to be bound. Objective signs of agreement make the contract enforceable.

- Brown v. Green (capacity)
  - One party is a minor. The minor can void the contract, except for necessities. Businesses dealing with minors should seek a cosigner or wait until majority.

- Johnson v. Baker (no meeting of the minds)
  - Each party reasonably believes a key term has a different meaning. Without shared meaning on an essential term, no contract is formed.

- Lucy v. Zehmer (objective assent)
  - Parties write and sign an agreement to sell a farm on a napkin. One later claims it was a joke. The court enforces the agreement because outward words and actions showed serious intent.

- Hamer v. Sidway (forbearance as consideration)
  - A promise to abstain from legal rights (e.g., no drinking or smoking) can be valid consideration if bargained for.

- Lefkowitz v. Great Minneapolis Surplus Store (ads as offers)
  - A clear and definite advertisement with specified terms and quantity can be an offer if it leaves nothing open for negotiation.

## Practical Applications

Document the essentials

- Spell out parties, subject matter, price or pricing method, quantity, timing, and key obligations
- Use plain, consistent terms; avoid ambiguity in critical clauses
- State how acceptance occurs (by signature, by email, by performance), and set an expiration date for offers

Lock down acceptance

- Use signature blocks for both parties
- For online transactions, use clear click-to-accept with a visible link to terms
- Keep records of all drafts, emails, and signed versions

Handle consideration and changes

- Confirm what each side is giving or promising
- For modifications:
  - Common law: add new consideration or recite recognized exceptions
  - UCC goods: document good faith and the new terms in writing if required

Manage capacity and authority

- If dealing with a minor, use a parent or guardian cosignature where appropriate
- Confirm that the signer has authority to bind a company (officer title, board approval if needed)

Meet writing requirements

- If the deal falls under the Statute of Frauds, get a signed writing before performance
- For goods \$500 or more, confirm quantity in writing; use merchant confirmatory memos when possible

Reduce risk of misunderstandings

- Define key terms upfront (scope of work, deliverables, milestones, acceptance criteria)
- Include merger (entire agreement) and no-oral-modification clauses where appropriate
- State governing law and venue

Digital best practices

- Use reputable e-sign platforms that comply with the E-SIGN Act and UETA
- Store signed PDFs and audit trails securely

## Summary Checklist

- Offer is clear, definite, and still open
- Acceptance mirrors required method and terms (or complies with UCC 2-207 for goods)
- Consideration exists on both sides (no past consideration or preexisting duty issues)
- Mutual assent shown by objective words and conduct
- Parties have capacity; signer has authority
- Purpose is lawful; no unconscionable terms
- Writing and signature obtained if required by the Statute of Frauds
- For goods, check UCC rules on firm offers, modifications, and battle of the forms
- Digital signatures and records comply with E-SIGN and UETA
- Key terms are defined; include entire agreement and governing law clauses

## Quick Reference

| Topic                 | Rule or Authority           | Key Point                                                |
| --------------------- | --------------------------- | -------------------------------------------------------- |
| Offer and acceptance  | Common law; mailbox rule    | Objective assent; mirror image rule applies              |
| Battle of the forms   | UCC 2-207                   | Acceptance can include new terms for goods               |
| Consideration         | Common law; Hamer v. Sidway | Bargained-for exchange; forbearance can count            |
| Statute of Frauds     | UCC 2-201; state statutes   | Writing/signature for land, 1-year, surety, goods \$500+ |
| Electronic signatures | E-SIGN Act; UETA            | E-signatures and records are valid and enforceable       |

Contract Formation: Elements, Examples, and Practical Tips