Contracts

Restatement (Second) of Contracts § 2 — Study Notes

Restatement (Second) of Contracts § 2, American Law Institute (1981)

Study notes for Restatement (Second) of Contracts § 2: professor notes, cold call prep, exam angles, and memory aids.

A valid contract requires mutual assent between parties and consideration, creating enforceable obligations.
Professor Notes

Restatement (Second) of Contracts § 2 defines a contract as a promise or set of promises that the law will enforce. A valid contract requires mutual assent, which signifies that both parties have agreed to the terms of the contract. This mutual assent is often evidenced through offer and acceptance, while consideration represents the value exchanged between the parties, serving as the incentive for each party to fulfill their obligations. Professors may emphasize the importance of these foundational elements in contractual agreements, as they form the basis of enforceability under contract law.

Furthermore, it's crucial to understand that mutual assent is not merely a subjective agreement but needs objective manifestation through the conduct of the parties, such as verbal communication, writings, or actions. There’s often a focus on distinguishing between unilateral and bilateral contracts, highlighting how mutual assent shapes their formation and the obligations derived from each type of contract.

Cold Call Prep
  1. 1Explain mutual assent and how it is expressed in contracts.
  2. 2What is consideration, and why is it essential for contract formation?
  3. 3Distinguish between an offer and an invitation to treat.
  4. 4How does Restatement § 2 relate to the concept of unilateral vs. bilateral contracts?
  5. 5Discuss how courts determine whether mutual assent has occurred.
  6. 6Can a contract be valid without a formal written document? Explain.
  7. 7What are some common defenses against claims of enforceable contracts?
Mnemonic Device

MAC - Mutual Assent & Consideration.

Distinguish From
CaseDistinction
Allen v. BissingerIn Allen, the court emphasized the importance of definitive terms in offers, showing how vague agreements can lead to a lack of enforceability.
Lucy v. ZehmerLucy highlights how mutual assent can be inferred from actions and circumstances, illustrating that intent can be exercised differently than presumed.
Policy Arguments

For the Rule

The requirement of mutual assent and consideration encourages parties to engage in deliberate and thoughtful negotiations, fostering fairness and predictability in contractual relationships.

Against the Rule

Strict adherence to mutual assent and consideration may inhibit flexibility and the ability to enforce informal agreements that parties intended to be binding based on context.

Class Discussion Points
  • The implications of recognizing informal agreements as enforceable contracts.
  • The influence of technological communications on mutual assent in contracts today.
  • Real-world applications of consideration and challenges in proving it.
  • Differences in enforceability between verbal agreements compared to written contracts.
  • Analyzing famous cases influenced by the principles outlined in Restatement § 2.
Exam Angle

Expect questions regarding the definition of mutual assent and consideration, and their role in determining the validity of contracts. Be prepared for hypothetical scenarios where you must analyze elements of contract formation.

View Full Case Brief

Ace Your Cold Calls with Briefly

Get AI-powered case briefs, study notes, and cold call prep for every case in your casebook.