Tue Feb 2

The five essential elements for commercial contract formation

Written by News Co Media

In Australia, commercial contract law pertains to the formation of a legal relationship based on an enforcement of promises. While the term itself embodies a broad umbrella of laws designed to regulate business transactions, the notion of ‘commercial contracts’ essentially refers to a legally binding document which is freely entered into by the concerning parties.

Commercial contracts that aren’t drawn up correctly can result in loopholes and weaknesses, therefore undermining the outlined agreement. Hence, it pays to know the important factors involved and keep a track of contracts, lest you find yourself in a sticky legal situation.

To gauge a better understanding of this practice and the role played by commercial contract lawyers in Melbourne and most other parts of Australia, it can help to grasp the five key requirements for legally binding contract formation.

Agreement: an ‘offer’ and ‘acceptance’ between parties

To begin with, there must be consensus between two or more parties: an ‘offeror’ and an ‘offeree’. The offeror expresses a clear indication (the offer) of a willingness to be bound by certain terms without further negotiation. The offeree then communicates their assent to that offer, otherwise known as ‘acceptance’.

Consideration: something of value is promised in exchange for a promise to act

This part of commercial contract formation is essential for a promise to be enforceable. Herein, a price is stipulated for the promise, meaning something is given in exchange for something received. In business, this typically involves the act of services for the promise of money, however the nature of consideration can certainly vary.

Capacity: being of legal age and sound mind to enter legal relations

In order to enter a legally binding contract, all parties involved must have contractual capacity to do so. Anyone who is under the age of 18, mentally impaired, intoxicated or bankrupt cannot enter a commercial contract. In this sense, capacity ensures vulnerable groups are not exploited.

Intention: the intention for parties to create legal relations

This element dictates that the parties involved in the commercial contract must intend to create legal relations. While the second element – consideration – is usually evidence of such intentions, the requirement of intention is considered an independent entity and therefore must be separately proved.

An intention to create legal relations removes any possibility of presumption. Herein, the party seeking to prove the nature of the relationship and the demonstration of intent is responsible for doing so.

Formalities/certainty: a sufficiently certain, completed and binding agreement

Not all contracts must comply with formalities. However, in those cases where this requirement is essential (namely the sale of land and contracts of guarantee), the parties’ rights and obligations must be identified and enforced.

Commonly occurring problems that prevent the formality and certainty of a legally binding contract formation include incomplete agreements due to the parties failing to reach consensus on all essential elements; uncertain agreements due to vague or ambiguous terms that cannot be assessed in court; and illusory promises as a result of the contract communicating unfettered discretion regarding one party’s promise to perform.