Remember, always, to start any contracts essay by identifying the applicable law – Common Law (C/L) or the Uniform Commercial Code (UCC). The applicable law will be the C/L unless the subject matter of the contract is the sale of goods. Then the choice of law will be the UCC. Some students wrongly believe, because the name is the Uniform Commercial Code or because the UCC often refers to merchants, that the UCC only applies if a merchant (or even both sides are merchants) is a party. This belief is NOT TRUE. Article 2 of the UCC applies if the subject matter of the contract is the sale of goods – PERIOD!! It sometimes applies for leases of goods, but that is for another time.
Sometimes, in the UCC, a particular provision (of the UCC) will only apply if a merchant (or both parties) is a merchant, but that determination can only be relevant if one has already determined that the UCC, as a whole, is the applicable law.
Formation: Contract Formation requires two things – two elements: (1) Mutual Assent and (2) Consideration.
Mutual Assent. Mutual Assent must be to the necessary terms which must be definite and certain. Mutual Assent is defined as offer and acceptance. We have to be a little careful here, because once you finish a discussion on offer, it is important to consider Revocation – whether or not the offer is still open so that it CAN be accepted. Because of this situation, some professors and some books treat revocation as a part of mutual assent. Some treat revocation as a part of acceptance. Some drop the term, “Mutual Assent” and list the elements of Formation as (1) Offer, (2) Revocation, (3) Acceptance and (4) Consideration. Some add Defenses to Formation as an additional element.
I don’t suppose it makes all that much difference, so long as you consider all of the categories. At my law school, we teach Mutual Assent (Offer and Acceptance) and Consideration as the elements of formation and then talk about the defenses to formation, so that is what I will do here.
Having said that, just remember to consider revocation between offer and acceptance and also remember to discuss defenses to formation at the end of the whole formation process.
So starting a contracts essay might look like this:
Has the contract been properly formed? To determine whether the contract has been properly formed, the first consideration is what is the applicable law? – Then state your rules for applicable law, analyze by using the facts and then come to a conclusion regarding the issue of applicable law.
Having discussed the issue of applicable law, your next step, all the time using the IRAC model, or some other similar model recommended by your law school and/or your professor, is to consider mutual assent. An issue statement might be something like: “Is there mutual assent?” Followed by, “Mutual Assent requires offer and acceptance.”
Remember our earlier discussion regarding the IRAC model. Since mutual assent has more than one element, you should IRAC EACH AND EVERY ELEMENT. In this case, that will be both elements – offer and acceptance. But remember to consider revocation between the two. So, IRAC offer, and when that is done, IRAC revocation, and when that is done, IRAC acceptance.
From here on out, I will presume that you have read about and understand IRAC discussed in a previous post (see Succeeding in Law School tag in this blog).
Next we’ll look at “Offer.”
Professor Doug Holden
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