Redefining Offer in Contract Law

Abstract

A fundamental question of contract law is: What facts create the legal relationship called a contract (and hence create a legal duty to perform the promise or promises within that relationship)? Every judge, lawyer, and law student knows that the manifestation of mutual assent ordinarily takes the form of an offer and an acceptance and includes the element of consideration. There should thus be a clear distinction between these three elements. Contract law's generally accepted definition of offer, however, overlaps with the element of consideration by incorporating the proposal of a bargain, potentially resulting in confusion when analyzing contract formation. The author argues that at least for the purpose of using contract elements as a tool for determining formation, contract law's definition of offer should be changed and any reference to proposing a bargain should be removed along with other revisions.

Keywords: Contracts, Offer and Acceptance, Bargain, Consideration

JEL Classification: K12, K40