Also known as: meetings of the minds · mutual assent · mutuality of assent
Written by attorneys — see sources below.
A manifestation of mutual assent by two or more persons to the terms of a bargain. The parties must objectively signal agreement on the same exchange through words, conduct, or both so that each understands the other to have assented to identical terms.
Melissa Mills agreed to sell wheat to Marcus Mitchell for delivery by the ship Peerless. Melissa meant the September Peerless while Marcus meant the October Peerless. Neither knew of the other's understanding when they exchanged messages. No contract formed because the parties attached materially different meanings to the term without awareness of the discrepancy.
Mariam Mansour telephoned Malcolm McKinley and offered to handle litigation for a flat fee if files were sent. Malcolm nodded and shook hands at a later meeting then immediately couriered boxes of documents. Mariam began work on the matters. The conduct manifested mutual assent to the exchange even without a signed writing.
Melanie Morris promised to deliver custom software to Miles Montgomery by a set date. Miles began installing the first modules and paid an initial installment. The start of performance by both parties supplied the required manifestation of mutual assent to the exchange.
Monarch Pharmaceuticals sent Marathon Logistics a written proposal to buy a shipment of chemicals at a stated price. Marathon replied by email accepting the exact terms. The sequence of proposal and acceptance created the manifestation of mutual assent required for contract formation.
Momentum Capital and Morgan Financial exchanged multiple emails and draft spreadsheets outlining a joint investment. No single document labeled an offer or acceptance. Their repeated revisions and eventual wire of funds nevertheless manifested mutual assent even though the precise moment of formation could not be identified.
Melissa Mills emailed Marcus Mitchell an offer to lease warehouse space for one year at a fixed rent. Marcus retained the power to complete mutual assent by accepting before the offer lapsed. His later signed acceptance letter therefore formed the contract.
Contract formation requires only objective manifestations of assent. Courts measure whether each party manifested assent to the same bargain through words or conduct rather than inquiring into hidden subjective intentions.
No contract forms on that term if neither party knows or has reason to know the meaning attached by the other. When each knows or has reason to know the other's meaning, the term likewise fails to create mutual assent.
Supporting sources
Yes. Mutual assent may arise through a course of conduct even when neither an offer nor an acceptance can be pinpointed and the exact moment of formation cannot be determined.
Supporting sources
No. Manifestation of mutual assent can occur through oral statements, conduct, or a combination of both. A signed document is not required unless a statute of frauds applies.
Supporting sources
…will dictate its law to an undetermined multiple rather than to an individual. They are said to resemble a law rather than a meeting of the minds. Siegelman v. Cunard White Star , 221 F. 2d 189, 206 (2 Cir. 1955). Vold, in the recent revision of his Law of Sales (2d ed. 1959), at page 447, wrote of this type of contract and…