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LEGAL NOTIONS Contracts, Agreements, and Promises The words contract, agreement, and promise are not synonymous under the law. Many a breach of contract case cannot be successfully pursued because there is no contract in place - rather, there is merely a non-binding agreement or an unenforceable promise. Nevertheless, there are some circumstances under which a promise which is not a contractual obligation may be enforced; often this arises when non-enforcement of the promise would result in injustice to a relying party's detriment or unjust enrichment to one party. Usually, a finding that there is a contract which is enforceable requires three things. First, all contract pre-formation requisites must have been met. These are: that there was an offer; that there was an acceptance of the offer; and, unless there is an applicable exception, that there is "consideration". What constitutes consideration is a complex topic. In a nutshell, consideration means a bargained-for exchange of a promise for a price or a promise for a promise. Second, in order to have an enforceable contract there also must not be any contract formation problems which operate to make the contract void, voidable, or otherwise treated as if it does not exist. Formation problems include: fraud, duress, undue influence, lack of legal capacity to contract, forming a contract for illegal activity, insufficient proof to substantiate that an oral contract was formed, among others. Third, for a contract to be valid after it is formed there must not be any post-formation factors which subsequently render the contract unenforceable or impossible to carryout. Such considerations include: discovery of mutual mistakes of fact bearing on the basis for entering into the contract; whether the contract has conditions that cannot be or have not been satisfied; and whether any disputed terms of the contract were modified. << back to columns >> The information provided in this column is not intended to be legal advice but merely conveys general information related to the topic. © 2004 2005 Scott J. Preble, A Prof. Law Corp., Antioch, (925) 756-7111. www.PrebleLawFirm.com.
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