1. What is a Contract?

Ans: A contract is an agreement between two or more parties that a court will enforce.

2. Why is a Contract used?

Ans: Contracts are used to shift risk between the parties. These risks often have to do with time, money, and changing market conditions.

3. What are the essential elements for making a contract?

Ans: The essential elements for making a contract are an offer, acceptance of the offer, and consideration. What this really means is that the parties to the agreement came to an understanding as to what they were agreeing to do.

4. Why is the formula of offer and acceptance used?

Ans: The formula of offer and acceptance is used in order to determine if and when a contract is formed as well as its terms. Generally an offer has to be accepted as is and without changes in order to form a contract. Offers may also sometimes be accepted by taking action such as performing what was asked. If you add or change the terms when responding to an offer, however, you are making a counter offer. The law views this as a rejection of the offer, and considers it to be a new offer to the other party for them to accept, reject or counter. Strictly speaking, once an offer is rejected or countered it is gone, and it cannot be accepted unless it is extended again.

5. What is Consideration?

Ans: In addition to an offer and an acceptance, the agreement must have a consideration. This is what the parties agree to exchange. It is also referred to as the legal detriment, in other words each side has to give something up. For example a buyer promises to pay money in exchange for a car. Each side has a detriment: the buyer parts with money and the seller transfers the car. Generally the amount of consideration does not matter so much as the fact that some exist.

6. Do Contracts fail?

Ans: Some contracts fail because there is no consideration or it is illusory. For example, suppose a person agrees to give me their car for free. If the other person does not give me the car, I will have a very difficult time getting the court to rule in my favor since a court will likely view the promise of a free car as a gift. If we change the facts to where a person will give me their car if I tow it away from their home, it is more likely a contract will be found to exist. This is because each side has some detriment.

7. What is a common example of an illusory consideration?

Ans: A common example of illusory consideration arises when a buyer, for example, agrees to purchase something but has the complete right to reject it and cancel the agreement if the item does not meet with their subjective approval
Under these circumstances can we really say that the buyer has agreed to do something?
Not really, and there may therefore not be a contract under these circumstances.

8. What are the limits on what the parties may contract to do?

Ans: The contract must have a lawful purpose. For example, a gambling debt in California is not generally enforceable. Similarly when a party defaults on an agreement to sell illicit drugs such a contract would not be enforceable, at least in court.

9. Are there any limits on what people can agree to or what a court will enforce?

Ans. There are limits on what people can agree to or what a court will enforce. If an agreement is unconscionable a court may not enforce it. In addition courts will do equity between the parties to prevent one side from taking unfair advantage of the other side. Take for example the situation above where the buyer can reject and cancel the agreement at their subjective whim. Suppose the seller delivered the item and the buyer used it for some time before rejecting it. A court may enforce the contract of sale because the buyer used the property. Or the buyer may have to pay for the value of the use of the product for the time it was used.

10. Does the law recognize oral agreements?

Ans: The law recognizes and courts will enforce oral agreements.

11. Are there instances where oral agreements do not work?

Ans: Oral agreements will not work in all situations. For example, sales of real property, sales of goods for more than $500.00, or contracts not to be performed within one year must be in writing. It is also a better practice to use written agreements because it will reduce (but not eliminate) disputes about the existence of a contract or its terms.