Also known as: manifestations of mutual assent · mutual assent
Written by attorneys · grounded in primary & secondary sources — see below
An objective expression by two or more persons through words or conduct of their agreement to the terms of an exchange. The expression must show that each party either made a promise or began or rendered a performance. When parties attach materially different meanings to their expressions and neither knows or has reason to know of the other's meaning, no such manifestation occurs.
Miranda Morales offered to sell her warehouse to Millennium Media for a fixed price. Millennium Media understood the offer to include adjacent parking rights while Morales understood it to exclude them. Neither side knew of the other's interpretation. No contract formed because the parties attached materially different meanings to the offer.
Ming Ma telephoned Momentum Capital and proposed to handle its litigation for a flat fee if the files were sent. At a later meeting Momentum Capital's counsel nodded, shook hands, and immediately couriered the files. Ma began work on the matters. The conduct supplied the required manifestation of mutual assent to the exchange.
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Malcolm McKinley agreed orally with Majestic Construction to supply lumber for a project. Before any writing was prepared McKinley delivered the first load and Majestic began using it on site. Each party's conduct of promising or rendering performance satisfied the requirement for manifestation of mutual assent.
Mason McCarthy sent a written proposal to Magnolia Foods offering to lease warehouse space on stated terms. Magnolia Foods responded by signing the proposal and returning it. The sequence of proposal and acceptance constituted the ordinary form of manifestation of mutual assent to the exchange.
Matthew Martinez and Michael Miller repeatedly exchanged emails about sharing office space and equipment costs. Without any single document labeled offer or acceptance they began moving furniture and splitting utility bills. Their ongoing conduct manifested mutual assent even though neither offer nor acceptance could be isolated.
Miranda Morales mailed an offer to sell equipment to Millennium Media that stated acceptance would be effective upon dispatch. Millennium Media placed its signed acceptance in the mail the same day. The acceptance completed the manifestation of mutual assent.
Contract law examines the outward manifestations of the parties rather than their hidden subjective intentions. When parties sign a writing or engage in conduct that a reasonable person would understand as assent, a court finds manifestation of mutual assent even if one party secretly did not intend to be bound.
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If neither party knows or has reason to know of the other's different meaning, there is no manifestation of mutual assent and no contract on that term. If one party knows the other's meaning and the other does not, the contract is interpreted according to the innocent party's meaning.
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Yes. A party may manifest assent by beginning or rendering performance when the offer invited acceptance by that performance. The conduct must be intentional and done with reason to know the other party will infer assent from it.
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Not always. Mutual assent may be shown by conduct or oral statements even without a signed document. A signed writing is required only when the statute of frauds applies to the subject matter of the bargain.
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…of their intentions which are communicated between them. ” Clark on Contracts, 4 ed., § 3, p. 4. An agreement or mutual assent is of course essential to a valid contract but the law imputes to a person an intention corresponding to the reasonable meaning of his words and acts. If his words and acts, judged by a…