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Contractual Assent, Meeting of the Minds

As a pre-requisite to prevailing on a breach of contract or breach of lease claim, one must first prove the existence of a valid contract. The elements of a contract are (1) the competency of the parties to contract; (2) proper subject matter; (3) legal consideration; (4) mutuality of agreement; and (5) mutuality of obligation. Competency generally means that the parties to the contract are over 18 years old and of sound mind and sound body. Permissible subject matter refers to a lawful contract topic; indeed, you cannot have a contract to do something which is illegal or against public policy and expect a Court to enforce it. Legal consideration is a bargained for exchanged, the value of which is usually not subject to much court scrutiny.

Mutuality of agreement is a little more nuanced. Contractual assent — or a meeting of the minds — and certainty as to essential terms are essential to the formation of a contract.  A mutual agreement is reached when the “minds of the contracting parties meet upon and assent to the same thing in the same sense at the same time. A meeting of the minds occurs when there is a definite offer and an unequivocal acceptance. An acceptance must be positive and unambiguous. Silence generally does not equal acceptance.

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