3 - Formation

Summary

Many people find it easiest to organize thinking about contracts and contract law in a sort of chronological fashion – focusing first on formation, then interpretation and performance, then remedies – and that is how most casebooks in the area are organized. Formation is the question of how and when contracts “come into being,” become valid and enforceable in court.

In any litigation for a breach of contract the plaintiff will first have to prove that there was a valid and enforceable contract. The elements the plaintiff will have to prove are offer, acceptance, and consideration. These are the basic requirements for a valid contract and the focus of the beginning sections of this chapter. Later sections touch on other legal issues relating to formation: rules relating to the written or nonwritten character of the (alleged) agreement and defenses available in a breach of contract relating to how the (alleged) agreement was formed.