Legal Memorandum: Mutual Assent in Contract Formation

Issue: What contractual terms must be subject to mutual assent in Alabama?

Area of Law: Business Organizations & Contracts
Keywords: Mutual assent; Formation of a valid contract
Jurisdiction: Alabama
Cited Cases: 622 So. 2d 1283; 644 So. 2d 919; 699 So. 2d 1242
Cited Statutes: Restatement (Second) of Contracts § 33 cmt. a (1979)
Date: 08/01/2000

An element necessary to prove the formation of a valid contract is mutual assent.  However, in Alabama, as in most jurisdictions, the law if definite that mutual assent is not required with respect to each and every contract term; rather, mutual assent is required only with respect to “essential terms.”  See Hargrove v. Tree of Life Christian Day Care Ctr., 699 So. 2d 1242, 1247 (Ala. 1997); Pinyan v. Community Bank, 644 So. 2d 919, 922 (Ala. 1994); Strength v. Alabama Dep’t of Fin., 622 So. 2d 1283, 1289 (Ala. 1993).  This is also the view of the Restatement of Contracts.  “Where the parties have intended to conclude a bargain, uncertainty as to incidental or collateral matters is seldom fatal to the existence of a contract.”  Restatement (Second) of Contracts § 33 cmt. a (1979).


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