Daniel O’Gorman, ‘Redefining Offer in Contract Law’

“… Contract law’s generally accepted definition of offer, however, overlaps with the element of consideration by incorporating within it the proposal of a bargain, potentially resulting in confusion when analyzing contract formation. Thus, at least for the purpose of using contract elements as a tool for determining formation, contract law’s definition of offer should be changed. Specifically, any reference to proposing a bargain should be removed. Also, if the definition is changed, certain other revisions should be made to make the definition more useful as a tool for analyzing contract formation. For example, the word promise should be added to emphasize that most offers are promises, and the requirement of communication or delivery to the offeree should be included. Part I of this Article explains the general requirement of a bargain to render a promise legally enforceable. Part II discusses the basic elements of a bargain: offer, acceptance, and consideration. Part III explains how contract law’s generally accepted definition of offer is likely to cause confusion when analyzing whether an informal contract has been formed. Part IV proposes a new definition of offer to be used when analyzing contract formation, one that will better serve the purpose of determining if a contract has been formed. Part V responds to potential objections to the new definition. Part VI provides an example of how the new definition would be used …”

Daniel P O’Gorman, REDEFINING OFFER IN CONTRACT LAW. Mississippi Law Journal, Vol 82:6 1049.

First posted 2013-05-26 11:55:40

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