Ficha de revisão: Fundamentals of Contract Formation and Validity

📋 Course Outline

1. Stages and effects of contract formation
2. Legal analysis of offer and acceptance in sales and public procurement
3. Counter-offers and timing in contract formation
4. Consideration and promissory estoppel in contract law
5. Intention to create legal relations and contractual capacity
6. Formalities, enforceability, and privity of contract
7. Illegality and misrepresentation in contract validity
8. Economic duress, undue influence, and contract voidability

📖 1. Stages and effects of contract formation

🔑 Key Concepts & Definitions

• Once the contract : The stage after a contract is made when it becomes binding on the parties, requiring them to perform their agreed obligations without escape except in limited situations.
• Contract is formed : The point at which the contract is made, marking the agreement between parties that triggers binding and enforceable obligations.

📝 Essential Points

• A contract becomes enforceable, allowing a party to sue for breach if the other fails to perform as agreed.
• The law of contract governs all commercial transactions, from small consumer purchases to complex business deals.

💡 Key Takeaway

Understanding the lifecycle of a contract clarifies when parties are legally bound and when enforcement mechanisms apply.

📖 2. Legal analysis of offer and acceptance in sales and public procurement

🔑 Key Concepts & Definitions

• The notion of invitation to treat : It isn’t an offer, but an invitation to make an offer.
• Offer : A proposal made by one party to another, which must be accepted by the offeree to form an agreement.
• Acceptance : An unqualified agreement to an offer, which can be expressed orally, in writing, by email, or by conduct, resulting in contract formation.
• Public procurement : The legally required procedure that public authorities must follow, including advertising and tendering, before awarding contracts, making direct hiring illegal.

📝 Essential Points

• Displaying products on supermarket shelves is an invitation to treat, not an offer.
• In retail sales, the consumer makes the offer at checkout, which the supermarket accepts by conduct (scanning and requesting payment).
• Acceptance must be unqualified and can be expressed orally, in writing, by email, or conduct.

💡 Key Takeaway

Distinguishing between offer, acceptance, and invitation to treat is crucial in analyzing contract formation in commercial and public contexts.

📖 3. Counter-offers and timing in contract formation

🔑 Key Concepts & Definitions

• Counter-offer : A rejection of the original offer combined with a new offer, which destroys the original offer and prevents contract formation until the new offer is accepted.
• Time of the essence clause : The contract must be performed in due time, and let’s say the deadline was the 15th of august 1976.
• Liquidated damages clause : A contractual clause specifying a predetermined amount of damages payable by the party at fault if they fail to perform their obligations.
• Ground of breach : A legal basis for claiming that a party has failed to perform their contractual obligations, such as missing a deadline specified in the contract.

📝 Essential Points

• A counter-offer rejects the original offer and proposes new terms, preventing contract formation until accepted.
• Time of the essence clause requires contract performance by a specified deadline, making timing critical.
• By rejecting and making a new offer, John destroyed the original offer.
• It means that the offer must be accepted as is.

💡 Key Takeaway

The dynamics of counter-offers and timing clauses shape the precise moment and terms under which contracts become binding or voidable.

📖 4. Consideration and promissory estoppel in contract law

🔑 Key Concepts & Definitions

• Consideration can be : An essential element in Anglo-American contract law requiring both parties to undertake something for one another, which can be a promise, an act, or a forbearance.
• Promissory estoppel : But Misses Johnson says that she will sustain a loss if they stop, so the conditions of the promissory estoppel are satisfied.

📝 Essential Points

• Consideration requires both parties to undertake something of value, which can be a promise, an act, or a forbearance.
• Amendments to contracts must be supported by fresh consideration to be valid.
• Promissory estoppel can prevent a party from reneging on a promise even without consideration if the other party would suffer loss relying on it.
• In the UK, promissory estoppel can only be used as a defense, not as a cause of action, whereas in the US it can be used more broadly.

💡 Key Takeaway

Consideration is essential for contract validity, but promissory estoppel offers equitable relief when consideration rules would cause injustice.

📖 5. Intention to create legal relations and contractual capacity

🔑 Key Concepts & Definitions

• For example : The case was interesting, decided in Hong Kong, back in the ’70 when it was still under the domination of Britain → the case was about 2 companies, A and B.
• THIRD ELEMENT : An essential requirement for a valid contract is the mutual intention of the parties that their agreement will be legally binding and enforceable.
• Legal persons : Entities such as companies and associations that have legal rights and obligations and act through representatives who must have authority to bind the entity.
• INTENTION TO CREATE A LEGAL : The mutual understanding between parties that their agreement will have legal consequences and be enforceable by law.

📝 Essential Points

• Mutual intention to create legal relations is necessary for an agreement to be legally binding and enforceable.
• Legal persons act through representatives with authority to bind the entity, as defined in their articles and bylaws.
• Articles and memorandum of association specify the scope of contracts a company can enter and may restrict dealings with representatives to prevent conflicts of interest.
• Sometimes the articles and memorandum of association have articles that prevent those conflicts of interest.
• In the articles and memorandum of association.

💡 Key Takeaway

Legal enforceability depends on both the parties' intention to create a legal relation and their legal capacity or authority to contract.

📖 6. Formalities, enforceability, and privity of contract

🔑 Key Concepts & Definitions

• Privity of contract : A legal principle establishing that only the parties involved in a contract have rights and obligations under that contract.
• Contract will have : A contract will have binding rights and obligations exclusively for the parties involved, except in cases involving intended beneficiaries or assignments.
• Means that the contract : It means that the contract is an absolute nullity, it cannot be saved.

📝 Essential Points

• Certain contracts must be in writing and registered to be enforceable, especially for real estate transactions.
• Intended beneficiaries who are not parties may have rights to enforce contracts made for their benefit.
• Assignment transfers contractual rights or obligations to a third party, binding them even if they were not original parties.
• The 2 parties must provide consideration : the 2 parties must undertake to do something for one another
• The intention to create a legal relation : when 2 parties enter into an agreement, they must intend their agreement to be legally binding, and to have legal consequences
• The capacity to make a contract : they must have the right to make the contract from a legal pov
• Sometimes a number of formalities must be fulfilled for the contract to be valid In the end, when all conditions are reunited, the contract is binding and enforceable, but a certain rule applies : the rule of privity of contract.
• II - THE NOTION OF ACCEPTANCE In order to form the contract, the parties must know exactly what are their mutual rights and obligations.

💡 Key Takeaway

Formal requirements and the privity principle define who can enforce contracts and under what conditions.

📖 7. Illegality and misrepresentation in contract validity

🔑 Key Concepts & Definitions

• Into a contract : The act of parties agreeing to terms such that the agreement becomes legally binding.
• Misrepresentation : 1 party lies and knows that she or he is lying.
• Statement of fact : Be the convincing element.
• Change of circumstances : But the Court decided that bc there had been a change of circumstances, I should have disclosed the buyer that I had lost a lot of patients.

📝 Essential Points

• Misrepresentation requires a false statement of fact that induces the other party to enter the contract.
• Failure to disclose a change of circumstances that renders a prior true statement false can amount to misrepresentation.
• Statements of law or opinion generally do not constitute misrepresentation.
• If the misled party knows the statement is false at the time, misrepresentation claim is invalid.

💡 Key Takeaway

Misrepresentation requires a false statement of fact that induces the other party to enter the contract.

📖 8. Economic duress, undue influence, and contract voidability

🔑 Key Concepts & Definitions

• Economic duress : A form of coercion where one party forces another to agree to contract amendments by applying unjustified economic pressure or threats, invalidating genuine consent.
• Undue influence : A situation arising from a special relationship in which one party abuses their power to obtain an unfair contract from the other party.
• Contract isn’t void : When you deal with misrepresentation, the contract isn’t void, but VOIDABLE.

📝 Essential Points

• Economic duress occurs when one party coerces another into contract amendments by threatening breach or harm, invalidating consent.
• Undue influence arises from special relationships where one party abuses power to obtain an unfair contract.
• In cases of presumed undue influence, the burden of proof shifts to the dominant party to show no abuse occurred.
• Contracts affected by economic duress or undue influence are voidable, not automatically void.
• Limitation periods may bar claims to void contracts on these grounds if not timely pursued.
• There are several :
  • Illegality of the subject matter
  • Misrepresentation
  • Mistake
  • Duress
  • Undue influence ILLEGALITY IF THE SUBJECT MATTER As such, the contract is void.
• For the case of the doctor, if I convince my patient to sell me a house at a price of 200 000 € when the real price is above 1M €, because I’m a doctor and because the contract is disadvantageous, the undue influence si presumed = THE BURDEN OF PROOF IS REVERSED → if the case goes to court, it will be the doctor’s responsibility to prove that there wasn’t any undue influence.

💡 Key Takeaway

Contracts formed under economic duress or undue influence are voidable, allowing affected parties to rescind them and thereby protecting fairness in contractual dealings.

📊 Synthesis Tables

Offer and Acceptance in Contract Formation

Concept	Description
Invitation to treat	An invitation to make an offer, not an offer itself
Offer	A proposal that can be accepted to form a contract
Acceptance	Unqualified agreement to an offer, forming a contract

Contract Validity and Voidability Factors

Factor	Effect
Illegality or misrepresentation	Can render a contract void
Economic duress or undue influence	Make a contract voidable
Formalities and privity	Determine enforceability and rights of third parties

⚠️ Common Pitfalls & Confusions

1. Confusing invitation to treat with an offer.
2. Overlooking the importance of acceptance being unqualified.
3. Misunderstanding the effect of counter-offers on contract formation.
4. Ignoring the significance of timing clauses like 'time of the essence'.
5. Assuming consideration is always monetary.
6. Neglecting the role of promissory estoppel in modifying contractual obligations.
7. Confusing legal capacity with contractual capacity.

✅ Exam Checklist

1. Identify whether a communication is an offer or invitation to treat.
2. Determine if acceptance was unqualified and properly communicated.
3. Check for counter-offers and their impact on original offers.
4. Verify if timing clauses are met.
5. Evaluate if promissory estoppel applies.
6. Confirm mutual intention to create legal relations.
7. Ensure parties have legal capacity to contract.
8. Check formalities required for specific contracts.
9. Determine privity of contract and rights of third parties.
10. Identify any illegality or misrepresentation.
11. Assess if economic duress or undue influence affected consent.