Help with Mutual Assent Forum

[stocksly33]

I've read through the restatements and chirelstein and i'm still having trouble understanding how mutual assent fits into the contract world.

I know basically what it means. but the elements of a contract are (generally): offer, acceptance, consideration.... nothing about mutual assent.

Is it the same thing as acceptance? I also see 'meeting of the minds' used... but I thought that was an antiquated notion?

thanks ya'll

[NoleinNY]

Short answer: Manifestations of mutual assent = valid offer + timely acceptance.

Note: there is no manifestation of mutual assent if parties attach materially different meanings to their manifestations and neither party knows or has reason to know meaning attached by the other or each party knows or has reason to know meaning attached by other. If both parties are equally innocent or equally guilty, then there is no contract. If one is innocent and the other isn't there is a contract on the terms of the innocent party's understanding. There's also stuff about the standard of a reasonable person in the party's position (Lucy v. Zehmer), etc., but I'm currently trying to re-organize my notes for outlining and probably should get off TLS...

[stocksly33]

Short answer: Manifestations of mutual assent = valid offer + timely acceptance.

... to me, this means Offer & Acceptance. I don't see how a valid offer and a valid acceptance differ from this definition of manifestation of mutual assent.

Note: there is no manifestation of mutual assent if parties attach materially different meanings to their manifestations and neither party knows or has reason to know meaning attached by the other or each party knows or has reason to know meaning attached by other. If both parties are equally innocent or equally guilty, then there is no contract..

Yeah, i'm all kinds of confused... I thought in Eurice bros' case, they decided it didn't matter if they have a meeting of the minds. it's what the objective person in outer space would think of the action/words.

There's also stuff about the standard of a reasonable person in the party's position (Lucy v. Zehmer), etc.

yeah, i thought this was another case saying the meeting of the minds doesn't matter, and what matters is the objective space man's point of view.

I'm currently trying to re-organize my notes for outlining and probably should get off TLS...

thanks anyways, maybe someone else can layman it down for me.

[Bustang]

Here's my section of notes on mental assent. Hope this helps

1. RS 2d 16: In order for K to be formed, there must be mutual assent towards the exchange and consideration.
2. This is the objective method to see if exchange of performance within K were agreed to.
1. Was K signed by both parties(Ray v. EB)?
2. Did parties conduct imply mutual assent? (Harlow Steel)
3. Meeting of minds not required! Mental assent not considered. RS 2d 70.
4. Does it appear that the parties intended to be bound?(See Battle of Forms).
3. The court will create reasonable person test to examine the conduct between the two parties to objectively consider whether or not there was an agreement (Ray v. EB).
1. It isn't want the parties thought or intended the K to mean!

[stocksly33]

Here's my section of notes on mental assent. Hope this helps

1. RS 2d 16: In order for K to be formed, there must be mutual assent towards the exchange and consideration.
2. This is the objective method to see if exchange of performance within K were agreed to.
1. Was K signed by both parties(Ray v. EB)?
2. Did parties conduct imply mutual assent? (Harlow Steel)
3. Meeting of minds not required! Mental assent not considered. RS 2d 70.
4. Does it appear that the parties intended to be bound?(See Battle of Forms).
3. The court will create reasonable person test to examine the conduct between the two parties to objectively consider whether or not there was an agreement (Ray v. EB).
1. It isn't want the parties thought or intended the K to mean!

Thanks Bustang. Yeah, i have pretty similar notes to yours.

I guess I don't see how mutual assent is any different from the constraints of a valid offer & acceptance. My notes in mutual assent are just an abbreviated form of my notes on offer and acceptance.

How is mutual assent different from the rules offer and acceptance? So on the test... i'll address offer and acceptance (and consideration), but I don't see what I would say about mutual assent. At this point i would just write... "and according to the constraints of offer and acceptance, the parties manifested their mutual assent to the K."

Also, you mentioned the objective method... isn't that the only method?

[Grizz]

Mutual assent is one of the elements of a contract. It can often be found in offer-acceptance. However, it can be useful to talk about contract formation in terms of mutual assent because not all contracts have a really clear offer/acceptance per se.

[GoodToBeTheKing]

manifestation of assent is an element that helps one figure out if a contract was formed

1. it is objective
2. it does not require any look into the mind of either party, but instead relies upon parties' actions and words
3. offer and acceptance, although not necessary, help one find objectively find out if there was manifestation of assent.

[kswiss]

It seems to me that there are two types of mutual assent: factual and objective. In other words "meeting of the minds," or "objective assent."

A court can't look into the minds of the parties to examine what they were thinking, so they look at the objective manifestations. Did a party start performing?, did a party start to rely on the contract?, were other contracts entered into that depended on the original contract?, etc.

I get from my reading that it is also kind of based in market theory: both parties think they are getting something positive out of the K, or they wouldn't be entering into the K to begin with. So both parties are in essence taking advantage of each other without feeling taken advantage of themselves. Mutual assent of the K should = mutually beneficial to both parties.

[stocksly33]

How about this:

Is it that Offer & Acceptance generally examine the Mechanical analysis of the formation of a contract. While Manifestation of Mutual Assent is primarily concerned with the Intent of the parties.

This seems to be the only difference I can make out between the two... it's confusing because Offer & Acceptance bleeds into the intent world a bit (i.e. R2K 24: An offer is the manifestation of willingness to enter into a bargain, so made as to justify another person in understanding that his assent to that bargain is invited and will conclude it.)

[Grizz]

Mutual assent of the K should = mutually beneficial to both parties.

It normally is, but it doesn't necessarily have to be.

[Grizz]

How about this:

Is it that Offer & Acceptance generally examine the Mechanical analysis of the formation of a contract. While Manifestation of Mutual Assent is primarily concerned with the Intent of the parties.

This seems to be the only difference I can make out between the two... it's confusing because Offer & Acceptance bleeds into the intent world a bit (i.e. R2K 24: An offer is the manifestation of willingness to enter into a bargain, so made as to justify another person in understanding that his assent to that bargain is invited and will conclude it.)

Not really. Looking at offer and acceptance is a good way to figure out if there was mutual assent. Mutual assent covers more than just offer-acceptance, because not all Ks can be analyzed by offer-acceptance.

[schmohawk]

Why are you assuming there is a difference between manifestation of mutual assent and offer/acceptance? If you have a valid offer and valid acceptance, then you have mutual assent. But just because you have mutual assent doesn't mean you have an offer and/or acceptance. The conduct of the parties might show that they did manifest some intent to be bound without ever making a formal offer or acceptance. You manifest (make known your intent in some way, shape, or form) your assent (agreement to be bound) by making me an offer. Your offer to me lets me know you have assented to being committed. I manifest my assent by accepting (either by a return promise or performance). That is manifestation of mutual assent.

[stocksly33]

Why are you assuming there is a difference between manifestation of mutual assent and offer/acceptance? If you have a valid offer and valid acceptance, then you have mutual assent. But just because you have mutual assent doesn't mean you have an offer and/or acceptance. The conduct of the parties might show that they did manifest some intent to be bound without ever making a formal offer or acceptance. You manifest (make known your intent in some way, shape, or form) your assent (agreement to be bound) by making me an offer. Your offer to me lets me know you have assented to being committed. I manifest my assent by accepting (either by a return promise or performance). That is manifestation of mutual assent.

thank you sir. that made it click.