In order to find for a plaintiff in a breach of contract lawsuit, the jury must find that the plaintiff has proved a number of items by a preponderance of the evidence. You need to know what constitutes a contract under the Pennsylvania Standard Jury Instructions. Those instructions state:
A contract is a legally enforced agreement between two or more competent parties who have each promised to do, or refrain from doing, some lawful act. Whether oral or written, a contract is enforceable if its terms clearly express what each party intended and expected. If the terms of the agreement are not definite and certain, any uncertainty may be clarified by examining the circumstances surrounding the bargain. The basic elements that must be present to form a contract, each of which must be proven by a preponderance of the evidence, are offer, acceptance, and consideration.
A. Offer. A valid offer expresses a willingness to enter into a contract. The offer gives someone else the power to create the contract by making a valid acceptance of the offer and thereby ?sealing the deal.? In determining whether something was intended to be an actual offer, it must be examined in context, and it must be examined in light of the surrounding circumstances. You may find that one party?s actions did constitute an offer when you consider the custom established in a particular trade or business, the relation between the parties, and the prior dealings between the parties.
The offer must create the power to accept, and thereby create a binding contract. Other statements may be mistaken for an offer. Some of these include:
1. an expression of intent to do something in the future (e.g., ?I intend to sell my car for $5,000.00.? The speaker is not bound to sell the car if the listener hands him or her the money. The speaker did not offer the car for sale.);
2. a request for bids, or invitations for others to make offers;
3. an invitation to negotiate, such as ?Would you consider selling that??;
4. a statement that a reasonable person would realize was not made in seriousness; and
5. an ?offer? made by an incompetent person is not a valid offer.
B. Acceptance. An acceptance is a clear indication that one agrees to be bound by the terms of the offer. The acceptance must be given within the time specified by the offer, or within a reasonable time if none is specified. The person to whom the offer was directed is the only person who may accept the offer.
If the parties have had previous dealings whereby certain methods of acceptance have become customary between them, then such will constitute a valid acceptance. An example of this would be a beginning of the requested performance upon receipt of the offer, rather than sending notice of acceptance of the offer first.
An acceptance must not change the terms of the offer, or impose any additional conditions. If it does change the terms of the offer, it will be considered a counter-offer, rather than an acceptance, and will therefore not create a contract.
C. Consideration. There must be consideration given by each party to a valid contract. That is, each party must have bargained to exchange his or her promise for another. The exchanged promises are either promises to perform or promises not to perform some act. The value or adequacy of the consideration given will not usually be examined, but the circumstances that show that both parties were capable of bargaining will be examined. In that sense, competent people are free to contract, and even if one makes a bad deal, he or she is bound by the agreement.
One?s promise to make a gift to another is not an enforceable promise since no consideration was given for that promise and thus no contract was created. There is, however, consideration where one promises to use his or her best efforts. Yet no consideration will be found upon which to base a contract if one party has promised to do something that he or she is already obligated to do, such as repay a preexisting debt.
However, if you find that a written contract exists between the plaintiff and the defendant, the contract was signed on behalf of both the plaintiff and the defendant, and contained language expressly providing that both parties ?intended to be legally bound,? then you are directed to find that the contract is not invalid or unenforceable for lack of consideration.
For more information about Evan Aidman, a Philadelphia, PA Injury Attorney and his work with clients with serious injuries click here: Philadelphia, PA Injury Attorney
Evan Aidman is the founder and principal of the Law Offices of Evan K. Aidman. Mr. Aidman received a Bachelor’s Degree in psychology from the University of Florida where he was elected to the Phi Beta Kappa Honor Society after compiling a near perfect scholastic record. He graduated from the University of Pennsylvania Law School, an Ivy League Institution, in 1983.
Click Here for Attorney Aidman’s website: Philadelphia Personal Injury Attorneys
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Posted January 31, 2008 
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