xr Trans-Lex.org Law Research Trans-Lex.org Law Research - Docid: 920000 -
Principle

No. IV.2.1 - Contractual consent

(a) A contract is concluded when one party has communicated to another an offer, and that other party has accepted it, or when the parties have united in a concurrent expression of intention, designed to create a contractual obligation or contractual obligations.

(b) A valid contractual consent requires that the parties intend to be legally bound and that they have sufficiently identified the terms of the contract with respect to the parties and the subject matter.

Commentary
1 Subsection (a) mentions two scenarios in which a contract can be concluded. In the first scenario, one party issues an offer and the other party accepts that offer. In this scenario, the contract is concluded once the offer has been accepted, unless that acceptance contains additions, limitations or other modifications which, when compared with the offer, constitute a material alteration of the offer. In that later case, the reply which purports to be an acceptance constitutes a rejection of the offer and a counter-offer. That counter-offer must be accepted by the party who issued the initial offer for the contract to be concluded.

2 Subsection (b) lists the two requirements which every declaration of will must meet in order to be qualified as a binding offer or acceptance, a subjective and an objective one.

3 The subjective one relates to the fact that for offer and acceptance to be legally valid and binding, they must be issued by the parties with an intention to be legally bound. Usually, such intention is not declared expressly and must be inferred from the circumstances of the case. If a statement is made by one party without such intention, that statement must be qualified as a non-binding declaration of interest or an invitation to make an offer ("invitatio ad offerendum").

4 The objective requirement relates to the fact that offer and acceptance must identify the essential elements ("essentialia negotii") of the contract which the parties intend to conclude, i.e. the identity of the parties, and, in case of a sales contract, the nature of the goods to be delivered by the seller and the price to be paid by the buyer. These elements can be determined by application of the general principles of interpretation. Essentially, the offer must be so specific that the offeree can conclude the contract by simply saying "yes". Put differently, the acceptance must be the mirror image of the offer. However, a contract can be concluded with the price or other essential elements being fixed at a subsequent stage if the parties indicate that they want to be bound even though that essential element has not yet been fixed.

5 There is a connection between both requirements. The more detailed and specific an offer is, the more likely it is that the party wants to be bound by it.


Please cite as: "Commentary to Trans-Lex Principle , http://www.trans-lex.org/920000"
References
Arbitral Awards
African Holding Company of America, Inc. Et Société Africaine de Construction au Congo S.A.R.L. v. La République Démocratique du Congo, CIRDI No. ARB/05/21
ICC Award No. 3327, Clunet 1982, at 971 et seq.
Iran-US Claims Tribunal, Award in Case No. 34, YCA 1987, 257
Society of Maritime Arbitrators, Inc., New York, Award No. 1757 "The Swee Lean", YCA 1984 at 150 et seq.
Doctrine
Anson, William R./Brierly, J. L., Principles of The English Law of Contract and of Agency in its Relation to Contract
Derains, Yves, note to ICC Award No. 3327, Clunet 1982, at 975 et seq.
Domingo, Ortega, Rodriguez-Antolin, Zambrana, Principios de Derecho Global, Navarra, 2006
Jenks, Edward et al., A Digest of English Civil Law, London, Sydney, Calcutta, Winnipeg, Wellington 1921.
Ripert, Georges, Les Règles du Droit Civil Applicables aux Rapports Internationaux (Contribution à l'Etude des Principes Généraux du Droit Visés au Statut de la Cour Permanente de Justice Internationale), 44 Rec.Cours 1933-II, at 569 et seq.
Schlesinger/ Rudolf B. (ed.), Formation of Contracts, A Study of the Common Core of Legal Systems, Vol. I, New York, London 1968
International Legislation
United Nations Convention on Contracts for the International Sale of Goods (CISG)
Model Laws
A Contract Code: Drawn up on Behalf of the English Law Commission
Draft Common Frame of Reference (EU) - DCFR (2008)
OHADA Uniform Act Relating to General Commercial Law (Translation)
Uniform Law on the Formation of Contracts for the International Sale of Goods
National Legislation
Civil Code Québec
Czechoslovak International Trade Code
Danish Contracts Act
Ethiopian Civil Code
Finnish Contracts Act
GIW GDR
Russian Civil Code
United Arab Emirates Civil Code 1987
Principles / Restatements
Principles of European Contract Law - PECL
Principles of the Existing EC Contract Law (Acquis Principles)
UNIDROIT Principles of International Commercial Contracts
Contract Clauses
1. Clause Ruling Existence of an Offer
Sales & Purchase Contract

Seller's acknowledgment, acceptance of payment, or commencement of performance shall constitute Seller's unqualified acceptance of this Contract - (International Contracting: Law and Practice - Larry A. DiMatteo - §6.05 A - S. 202).
Offer to Sell
Giving an Offer Notice to the Company shall constitute an offer by the Transferor on the date the Offer Notice is received by the Company (the "Offer Date") to sell the Offered Shares to the Company and/or the other Shareholders (the "Remaining Shareholders") at a purchase price per Share (the "Purchase Price") equal to the Offered Price and in the manner provided in Section X. If the Offered Shares are proposed to be sold for consideration other than solely cash, the Offered Price shall be deemed to be the sum of (a) the fair market value of the consideration other than cash offered for the Offered Shares as determined in good faith by the Board of Directors of the Company, and (b) any cash consideration so offered.
1995

X (the "Underwriter") hereby offers to enter into this Bond Purchase Contract (the "Purchase Contract") with Y, (the "Issuer"). The offer is hereby made subject to acceptance by the Issuer (by the execution and delivery of this Purchase Contract to the Underwriter) on or before 8:00 a.m., Pacific Standard Time, on {Month} {Day}, {Year} and upon such acceptance, this Purchase Contract shall be in full force and effect in accordance with its terms and shall be binding upon the Issuer and the Underwriter (...)
1998
Confirmation Procedure
If the Parties come to an understanding regarding the sale and purchase of Gas, the transaction will be communicated in a Confirmation that will reflect the Transaction Type, Contract Quantity, Delivery Period, Contract Price, Delivery Point(s) and any other special terms to which the Parties have agreed. Each Confirmation shall be sent by X to Company via facsimile and shall become a part of this contract. If a Confirmation is not objected to or returned to X by Company via facsimile within two (2) Business Days of the successful transmittal thereof, then that Confirmation shall be accepted by both Parties.
2002

(...) This offer is made subject to acceptance by the Partnership, X, the Parent Company and the Issuer on or before 5:00 p.m., eastern time, on the date hereof (...)
2003
Binding Effect
This Assignment constitutes, and after giving effect hereto, the RPA will constitute, the legal, valid and binding obligation of the Assignee enforceable against the Assignee in accordance with its terms, except as such enforcement may be limited by applicable bankruptcy, insolvency, reorganization or other similar laws relating to or limiting creditors’ rights generally.
2003

X (the "Underwriter") hereby offers to enter into this Bond Purchase Agreement (this "Bond Purchase Agreement") with Y (the "Issuer"), and Z (the "Company"). The offer is hereby made subject to acceptance by the Issuer and the Company (by the execution and delivery of this Bond Purchase Agreement to the Underwriter) on or before 6:00 p.m. New York, New York time, on {Month} {Day}, 20XX, and upon such acceptance this Bond Purchase Agreement shall be in full force and effect in accordance with its terms and shall be binding upon the Issuer, the Company and the Underwriter.
2005

The Company is obligated under the Credit Agreement to issue the Shares (as defined below) to the Trust for the sole benefit of the United States Treasury, and the issuance of the Shares to the Trust is intended to provide compensation for the assumption of the risks arising from the Credit Agreement and to reduce those risks.
2009
Loan Contract
Binding Effect
This Agreement constitutes a valid and binding agreement of each of the Parent Guarantor and the Borrower and the other Financing Documents, when executed and delivered in accordance with this Agreement, will constitute valid and binding obligations of each Obligor that is a party thereto, in each case enforceable in accordance with its terms.
2011
2. Clause Expressly Excluding the Existence of an Offer
Sales & Purchase Contract

This MOU {Memorandum of Understanding} is not a contract or agreement and does not create any legally valid, enforceable or binding commitments, agreements or obligations of any kind between the parties. This MOU is not an offer and is not intended to, and does not create any offer capable of being accepted or deemed accepted.
Submission not an Option
The submission of this agreement for examination and negotiation does not constitute an offer to sell, a reservation of, or option for the property and shall vest no right in any party. Buyer or anyone claiming under or through buyer shall have the rights to the property as set forth herein and this agreement shall become effective as a agreement only upon execution, acknowledgment and delivery thereof by Seller and Buyer, regardless of any written or verbal representation of any agent, manager or employee of seller to the contrary.
2004
3. Intention to be Legally Bound
Employment Contract
At-Will Employment
I understand and acknowledge that my employment with the company is for an unspecified duration and constitutes “at-will” employment. I also understand that any representation to the contrary is unauthorized and not valid unless obtained in writing and signed by the president of the company. I acknowledge that this employment relationship may be terminated at any time, with or without good cause or for any or no cause, at the option either of the company or myself, with or without notice.
Voluntary Nature of Agreement
I acknowledge and agree that I am executing this Agreement voluntarily and without any duress or undue influence by the company or anyone else. I further acknowledge and agree that I have carefully read this Agreement and that I have asked any questions needed for me to understand the terms, consequences and binding effect of this Agreement and fully understand it, including that I am waiving my right to a jury trial. Finally, I agree that I have been provided an opportunity to seek the advice of an attorney of my choice before signing this Agreement.
Sales & Purchase Contract
Representations and Warranties of the Seller
The execution and delivery by the Seller of this Agreement and the performance by the Seller of its obligations hereunder, has been duly and validly authorized, no other internal action on the part of the Seller or its stockholders (or its higher authorities) is necessary. This Agreement has been duly and validly executed and delivered by the seller and constitutes a legal, valid and binding obligation of the Seller enforceable against the Seller in accordance with its terms.
1997
Effectiveness of the Agreement
This Agreement shall be binding and effective upon execution by both the Seller and the Purchaser.
1997
Binding Provisions
This Agreement is binding upon, and to the limited extent specifically provided herein, inures to the benefit of, the parties hereto and their respective heirs, executors, administrators, personal and legal representatives, successors and assigns.
1997
Representation and Warranties
Each of Buyer and Seller represents and warrants to the other that (i) it is duly authorized to execute and deliver this Agreement, to enter into the Transactions contemplated hereunder and to perform its obligations hereunder and has taken all necessary action to authorize such execution, delivery and performance; (ii) it will engage in such Transactions as principal; (iii) the person signing this Agreement on its behalf is duly authorized to do so on its behalf; (iv) this Agreement is legal, valid and binding obligation of it, enforceable against it in accordance with its terms (...)
1998
Purpose and Procedures
This Contract establishes mutually agreed and legally binding terms governing purchases, sales and exchanges of Gas between X and Company made during the term of this Contract (...)
2002
Purchase and Sale Agreement
Buyer and Seller hereby enter into this Purchase and Sale Agreement (this "Agreement"), intending to be legally bound hereby, as of {Month} ____, {Year} (the "Effective Date") (i.e., the date both parties have executed this Agreement).
2004
Authorization; Enforceability
Subject to the entry and effectiveness of the Sale Approval Order, each Seller has the requisite corporate or limited liability company power and authority, as the case may be, to (a) execute and deliver this Agreement and the Ancillary Agreements to which such Seller is a party; (b) perform its obligations hereunder and thereunder; and (c) consummate the transactions contemplated by this Agreement and the Ancillary Agreements to which such Seller is a party. Subject to the entry and effectiveness of the Sale Approval Order, this Agreement constitutes, and each Ancillary Agreement, when duly executed and delivered by each Seller that is a party thereto, shall constitute, a valid and legally binding obligation of such Seller (assuming that this Agreement and such Ancillary Agreements constitute valid and legally binding obligations of Purchaser), enforceable against such Seller in accordance with its respective terms and conditions, except as enforceability may be limited by applicable bankruptcy, reorganization, insolvency, moratorium, fraudulent transfer and other similar Laws relating to or affecting the enforcement of creditors' rights generally from time to time in effect and by general equitable principles relating to enforceability, including principles of commercial reasonableness, good faith and fair dealing.
2009
Binding Effect
This Agreement and each other Transaction Document to which such Seller Party is a party constitute the legal, valid and binding obligations of such Seller Party enforceable against such Seller Party in accordance with their respective terms, except as such enforcement may be limited by applicable bankruptcy, insolvency, reorganization or other similar laws relating to or limiting creditors’ rights generally and by general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
2009
Representations
This Agreement has been duly and validly executed and delivered by the Company and (assuming due authorization, execution and delivery by the Trust) shall constitute the valid and legally binding obligation of the Company, enforceable against the Company in accordance with its terms, except that rights to indemnification and contribution may be limited under applicable law.
2009
Form of Opinion
The Stock Purchase Agreement, assuming due authorization, execution and delivery by the Trust, constitutes a valid and legally binding agreement of the Company enforceable against the Company in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles (...)
2009
Power and Authority
(...) This Agreement and the Note constitute legal, valid and binding obligations of Buyer enforceable against Buyer in accordance with their respective terms, except as the enforcement thereof may be limited only by applicable bankruptcy, insolvency or similar laws affecting the enforcement of creditors' rights generally. 
2010
Authorization
All corporate action on the part of the Company, its officers, directors and shareholders necessary for the authorization, execution and delivery of this Agreement, the performance of all obligations of the Company hereunder, and the authorization, issuance, sale and delivery of the Shares has been taken or will be taken prior to the Closing, and this Agreement constitutes the valid and legally binding obligation of the Company, enforceable in accordance with its terms, except (a) as limited by applicable bankruptcy, insolvency, reorganization, moratorium, and other laws of general application affecting enforcement of creditors' rights generally, and (b) as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies.
2011
Proposed Sale of Post Business
This letter (this Letter Agreement​) confirms the binding agreement between X, a Delaware corporation (the Seller), Y, a Delaware limited liability company (the Purchaser), and, solely to the extent provided herein, Z, a Washington limited liability company (the Guarantor​), regarding the sale to the Purchaser of the Post Business (as defined in Section X). The principal binding terms are set forth in this Letter Agreement. Following execution of this Letter Agreement, the parties and their counsel will promptly prepare a definitive Securities Purchase Agreement (the Purchase Agreement) and other applicable definitive documentation (...)
2013
Binding Effect
This Agreement has been duly executed and delivered by the Company, and constitutes the legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, fraudulent conveyance or transfer, moratorium or similar laws affecting the enforcement of creditors' rights generally and by general principles of equity.
2014
Loan Contract
Evidence of Debt; Repayment of Loans
The Borrower hereby unconditionally promises to pay to the Lender the then-unpaid principal amount of each Loan, together with accrued and unpaid interest thereon and fees hereunder, on the Maturity Date.
2008
Binding Effect
This Agreement shall become effective when it shall have been executed by the Borrower and the Lender.
2008
Legal Effect
This Agreement constitutes, and any instrument or agreement Borrower is required to give under this Agreement when delivered will constitute legal, valid, and binding obligations of Borrower enforceable against Borrower in accordance with their respective terms.
2012
Binding Effect
This Agreement, the Note, all Security Agreements (if any), and all Related Documents are binding upon the signers thereof, as well as upon their successors, representatives and assigns, and are legally enforceable in accordance with their respective terms.
2012
Bankruptcy Agreement
Agreement
This Contract establishes mutually agreed and legally binding terms governing purchases, sales and exchanges of Gas between X and Company made during the term of this Contract (...)
2000
Confirmation Procedure
If the Parties come to an understanding regarding the sale and purchase of Gas, the transaction will be communicated in a Confirmation that will reflect the Transaction Type, Contract Quantity, Delivery Period, Contract Price, Delivery Point(s) and any other special terms to which the Parties have agreed. Each Confirmation shall be sent by TMV to Company via facsimile and shall become a part of this contract. If a Confirmation is not objected to or returned to TMV by Company via facsimile within two (2) Business Days of the successful transmittal thereof, then that Confirmation shall be accepted by both Parties.
2000
Firm Transaction
(...) Buyer shall have an absolute obligation to purchase and receive, and Seller shall have an absolute obligation to sell and deliver one hundred per cent (100%) of the Contract Quantity in the applicable Confirmation. Failure to buy or sell the Contract Quantity shall subject the failing party to the damages prescribed in Article X.
2000
Asset Transfer Agreement

The Management Shareholder holds 100% of the Seller's equity interests. A decision, act, consent or instruction of the Management Shareholder (including an amendment, extension or waiver of this Agreement) shall be final, binding and conclusive upon the Purchaser, and the Purchaser may rely upon any such decision, act, consent or instruction of the Management Shareholder as being the decision, act, consent or instruction of each of the Seller.
2009
Merger Agreement

(...) therefore, in consideration of the foregoing premises and the representations, warranties, covenants and agreements contained in this Agreement, and subject to the conditions set forth herein, as well as other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, the Parties agree as follows (...)
2013
Authority; Binding Nature of Agreement
(...) This Agreement has been duly executed and delivered by the Company and, assuming the due and valid authorization, execution and delivery of this Agreement by Parent and Merger Sub, constitutes the valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to: (i) applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar Laws, now or hereinafter in effect, relating to or affecting creditors' rights generally; and (ii) rules of Law governing specific performance, injunctive relief and other equitable remedies (whether considered in a proceeding in equity or at law) (the "Bankruptcy and Equity Exception").
2013
Joint Venture
Representations and Warranties
X hereby represents and warrants, as of the date of this Agreement, that (...) this Agreement has been duly executed and delivered by X and constitutes the legal, valid and binding obligation of X, enforceable in accordance with its terms (subject to applicable bankruptcy, insolvency, moratorium or similar laws affecting creditors' rights generally, equitable principles and judicial discretion) (...)
2007
Enforceability
This Agreement constitutes the legal, valid and binding obligation of such party enforceable in accordance with its terms.
2008
4. No Intention to be Legally Bound
Sales & Purchase Contract
Applicability
(...) This Agreement does not constitute a commitment of Buyer or Seller to enter into Transactions but rather sets forth the procedures to be followed in connection with requests to enter into Transactions by Seller to Buyer. Seller hereby acknowledges that Buyer is under no obligation to agree to enter into Transactions under this Agreement.
1998
Bankruptcy Agreement

Nothing contained herein shall constitute an offer, an acceptance, or a legally binding obligation of the Debtors or any other party in interest. This Plan is subject to approval of the Bankruptcy Court and other customary conditions. This Plan is not an offer with respect to any securities. This is not a solicitation of acceptances or rejections of the Plan. Acceptances or rejections with respect to this Plan may not be solicited until a disclosure statement has been approved by the United States Bankruptcy Court for the Southern District of New York in accordance with section 1125 of the Bankruptcy Code. Such a solicitation will only be made in compliance with applicable provisions of securities and bankruptcy laws. You should not rely on the information contained in, or the terms of, this Plan for any purpose (including in connection with the purchase or sale of the debtor's securities) prior to the confirmation of this Plan by the Bankruptcy Court.
2011
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