Contract Formation Flashcards
(29 cards)
What are the core elements of contract formation in both systems?
Offer, acceptance, and intention to be legally bound. Example: A buyer emails an offer, the seller accepts — that forms a contract.
What extra element does common law require for a valid contract?
Consideration: both sides must exchange something of value. Example: A promise to gift €10,000 isn’t enforceable unless something is given in return.
What is an “offer” in contract law?
A clear and definite proposal to contract that, if accepted, forms a contract. Example: “I will sell you 100 units at €10 each, delivery in 2 weeks.” Must include quantity and price
What is “acceptance” in contract law?
Unconditional agreement to the terms of the offer. Example: “I accept your offer to sell 100 units at €10 each.”
Can silence count as acceptance?
It depends, but Generally no — but some civil law systems or trade customs may allow it. Example: In civil law, a supplier might be bound if they don’t object to an order.
What is the difference between an offer and an invitation to treat?
An offer can be accepted to form a contract; an invitation to treat is just a request to negotiate. Example: A product listing on a website is usually an invitation to treat.
What is “intention to be legally bound”?
Parties must want the agreement to have legal consequences. Example: Friends agreeing to meet for lunch don’t create a contract.
What role does contract definiteness play?
The terms must be clear enough to be enforceable. Example: “We’ll figure out the price later” is usually too vague.
What does civil law say about formal requirements?
Contracts may require writing for certain types (e.g., real estate). Others can be oral or implied. Example: A Dutch company contract for €50,000 worth of steel might be valid even if agreed over the phone.
Does common law require formalities?
Generally not, except for specific cases like land or guarantees. Example: A handshake deal for goods might be binding in the UK.
What is the role of industry custom in contract formation?
In civil law, usage can help define terms or even imply contracts. Example: If all freight contracts in an industry include Incoterms, that may be assumed.
What is “battle of the forms”?
When both parties use different standard terms — and it’s unclear which set applies. Example: Buyer sends a PO with terms, seller confirms with different terms.
How is “battle of the forms” resolved in civil law?
Often by identifying the last document exchanged without objection (“last shot rule”). Example: If seller sends confirmation and buyer doesn’t protest, seller’s terms may win.
How is “battle of the forms” handled in common law?
Courts may look at conduct to see if a contract exists despite clashing terms. Example: If goods are delivered and paid for, the court may enforce the common terms.
What is the “mirror image rule”?
Acceptance must exactly match the offer. Applies mostly in common law. Example: If you change delivery date when accepting, it’s a counter-offer, not acceptance.
What happens if the contract formation is not clear?
Courts may still find a contract if parties acted like one existed. Example: Goods delivered and paid for — even without a signed contract.
What is the difference between subjective and objective intention?
Objective: what a reasonable outsider sees. Subjective: what the parties meant. Civil law mixes both; common law uses mostly objective. Example: If emails show agreement but one party says “I wasn’t serious,” a court still finds a contract.
What is “pre-contractual behavior”?
Actions before the contract that may affect whether one was formed. Example: A long negotiation and a draft may show intent to contract.
What is the role of electronic communication in forming contracts?
Email, websites, and platforms are valid for offers/acceptance in both systems. Example: An email confirming a price and delivery creates a binding deal.
How do contract formation requirements differ between common law and civil law systems?”
A: Common law requires offer, acceptance, intention, and consideration. Civil law only needs mutual intent and agreement. Civil law is more flexible with silence, usage, and form. Example: A civil law court may find a valid deal from conduct and trade custom; common law needs clearer acceptance and exchange.
Why are common law contracts usually longer than civil law contracts?
Because common law doesn’t provide many default rules. Everything must be spelled out. Example: A UK contract includes detailed payment and delivery terms that a French contract might leave to the civil code.
How does civil law affect contract length?
Civil law contracts are often shorter because many rules (like delivery, warranties, liability) are built into the legal code. Example: A German sales contract may rely on the BGB to define non-conformity and damages.
Why are statements of assumptions more common in common law contracts?
Common law interprets contracts literally. Statements of assumptions clarify context and reduce interpretation risks. Example: A UK clause might say, “This price assumes all permits are granted.”
How does the use of background law differ in the two systems?
Civil law often fills gaps using the code. Common law won’t supply missing terms unless absolutely necessary. Example: In Denmark, if the contract says nothing about price, the court may apply the code. In the US, the contract might fail for uncertainty.
