Speaker 0 00:00:00 It can be, you know, sort of when you're being thoughtful, right?
Speaker 1 00:00:04 Yeah, yeah. To be considerate. Or if I'm arguing with my wife, I might say you have not taken my feelings into consideration.
Speaker 0 00:00:14 <laugh>
Speaker 1 00:00:15 I, I probably wouldn't say it so calmly if we were actually fighting, but
Speaker 0 00:00:21 I, that sounded, that sounded, that sounded very nice.
Speaker 3 00:00:32 All present, having business report, the honor,
Speaker 0 00:00:34 Welcome to the us law essentials law and language podcast, the legal English podcast for non-native English speakers that helps you improve your English, listening, improve your legal English vocabulary and build your knowledge of American legal culture. Hi, this is Daniel. And before we begin today's episode, I wanna remind you that us law essentials offers online courses in legal English, and online courses in us law. Our courses are designed for international attorneys, students, translators, and bar candidates. If you have any questions, please
[email protected]. Also, please visit
[email protected] and join us on Facebook and LinkedIn. And now today's episode.
Speaker 1 00:01:28 Hello and welcome to the us law essentials law and language podcast. I'm your host, Stephen Horowitz.
Speaker 0 00:01:34 I'm Daniel Littleon.
Speaker 1 00:01:36 And today we continue our law school essential series, where we discuss a legal topic that is tested on us law school exams and on and us bar exams. And today we're gonna be talking about the elements of a contract.
Speaker 0 00:01:53 Ooh. All right. So, Steve. Yeah. Um, I was gonna ask you what a contract is, but before we get there, uh, what's an element.
Speaker 1 00:02:04 An element is like a piece of a thing. It's like one part of a thing. So, so if your next question was gonna be what's a contract, well, that's what we're gonna talk about. Um, there's three pieces or three things you need to make sure that you have a contract. And so those three things are called the elements of a contract.
Speaker 0 00:02:25 Okay. So when you, us lawyers talk about elements, what they mean is something that's required in order to have some sort of legal result. So the, the contract is a legal result. What we, what we're focused on are, what do we need to create this
Speaker 1 00:02:42 Contract? Yes, yes. Well said, so there's three elements for the formation of a contract under us law. Do you happen to know what any of them are?
Speaker 0 00:02:51 I think I do, but I wanna, I wanna offer one, one word of warning. Yeah. You ready? Yes. Okay. When you take a us law school course, your contracts professor might tell you, these are the elements of contract formation. It might be slightly D different from what we say. Just always follow what your professor says. Is that fair?
Speaker 1 00:03:15 Yeah. Yeah. That's fair. Okay.
Speaker 0 00:03:18 So you asked me what the elements of a contract are.
Speaker 1 00:03:21 Yeah.
Speaker 0 00:03:21 All right. Are you ready?
Speaker 1 00:03:23 Go,
Speaker 0 00:03:24 Okay. You need an offer,
Speaker 1 00:03:28 Right?
Speaker 0 00:03:29 You need an acceptance,
Speaker 1 00:03:32 Right.
Speaker 0 00:03:33 And also the third thing, then you have to define it. You need consideration. Go
Speaker 1 00:03:38 Consideration. Okay. So offer, let's talk about offer and acceptance first. I think we all know what they mean, but an offer means, Hey, do you wanna do this? Or, Hey, do you wanna sell me this?
Speaker 0 00:03:50 Okay.
Speaker 1 00:03:52 And acceptance would be what
Speaker 0 00:03:55 That's agreement when you say yes. Yes. I agree to your terms.
Speaker 1 00:04:00 Sure, sure. I'll I'll buy that or sure. I'll sell you that. Okay. So then the third piece is consideration, and this is definitely a, a very legal English word because it has a very different meaning in law than it does in, uh, regular English.
Speaker 0 00:04:15 Right. Consideration normally is like being, being polite.
Speaker 1 00:04:20 Yeah. Or just thinking about something. Oh, I'll, I'll take that into consideration.
Speaker 0 00:04:24 Very good. It can be, you know, sort of when you're being thoughtful, right?
Speaker 1 00:04:30 Yeah, yeah. To be considerate. Or if I'm arguing with my wife, I might say you have not taken my feelings into consideration.
Speaker 0 00:04:40 <laugh>
Speaker 1 00:04:41 I, I probably wouldn't say it so calmly if we were actually fighting, but
Speaker 0 00:04:48 That sounded, that sounded, that sounded very nice.
Speaker 1 00:04:50 That, that, that was not a, that was not an accurate portrayal perhaps. Uh, anyway. Okay. Um, so consideration in law has a very specific meaning and you wanna take a shot at it?
Speaker 0 00:05:03 I do. Um, wait. No, no, no. I said, I said, if I said it, you had to define it. That was the rule. Oh, okay. We had a contract and you agreed. You're breaking
Speaker 1 00:05:13 Steve. I don't think there was, I don't think there was any consideration Dan, because cons consideration means something of value that is given or exchanged.
Speaker 0 00:05:25 Yeah. So I, I agree completely. Um, typically us law schools will define consideration as a bargained for exchange. That is the parties agree to exchange something of value as you as part of the contract.
Speaker 1 00:05:49 Okay. So you said, Steve, you do the definition of consideration. And I said, okay. So we had offer and we had acceptance. Was there any consideration for, not just for my feelings, but was there bargained for value?
Speaker 0 00:06:04 No, that would be considered, um, a, a pro a promise without consideration. That is, you said, sure. I'll do it, but I really didn't do anything for you. That would have been the incentive for you to agree, to define consideration for me.
Speaker 1 00:06:23 Right. I was probably just being polite. I was just being considerate to you by, by saying. Sure.
Speaker 0 00:06:30 Yeah. So typically if someone says, okay, I'll give you a hundred dollars next week, then that would just be considered a gratuitous promise. No consideration, no obligation to actually give the person a hundred dollars next week.
Speaker 1 00:06:47 So if I say, Dan, do you want my TV?
Speaker 0 00:06:50 Yes. Contract done. Thank you.
Speaker 1 00:06:52 No, wait a second. There's no consideration there.
Speaker 0 00:06:56 Yeah. And actually I'm not even sure there was an offer. You just asked me if I wanted your TV.
Speaker 1 00:07:01 I think that's good enough for an offer. I, I guess you could argue or debate about whether that was an offer.
Speaker 0 00:07:05 Yeah. So actually let's, let's, let's let's, let's go, let's go step by step through these elements. All. Okay. So you did an offer and acceptance. So sometimes that's called mutual ascent mutual agreement. And to break it down further, the first thing we need is an offer. So what do we need for an offer?
Speaker 1 00:07:25 What do I need for an offer? I think I need you to say something to me.
Speaker 0 00:07:30 Well, an offer can be in writing. It, it, it doesn't have to be oral, but it has to be something sufficiently definite that the other person realizes that if they accept a contract will be formed. Ah, okay. So for example, Steve, I'm thinking of selling my television and I might be selling it for somewhere around the 200 or $300 range.
Speaker 1 00:08:00 Well, that does not, that does not sound very definite. You said I'm thinking of, and you said around the 200 to $300 range. So no, that doesn't feel like, like a real offer.
Speaker 0 00:08:12 Yeah. So it,
Speaker 1 00:08:13 We're just, we're just negotiating really at that point.
Speaker 0 00:08:16 Right, right. It almost sounds like I'm sort of inviting you to make some sort of proposition about how much you'd be willing to pay me for my television Uhhuh.
Speaker 1 00:08:24 <affirmative>
Speaker 0 00:08:24 All right. So Steve, uh, we talked about what a, what an offer is there? How would you explain what an acceptance is?
Speaker 1 00:08:31 Uh, yes or no?
Speaker 0 00:08:33 You can do more than okay. I mean,
Speaker 1 00:08:37 Well, acceptance is letting the person know that you want the offer. Okay.
Speaker 0 00:08:42 All right. Fine. All right. So once we have that mutual ascent and we have consideration, we sort of know what a contract is, but, but Steve, practically speaking, how does this come up on us law school exams?
Speaker 1 00:08:55 Oh, that's a good question, Dan. So you might have a story, um, uh, a set of facts or a fact pattern as they call it in law school. And, um, in that story, there might, you might start to recognize that there's something about a contract going on, somebody's buying or selling something, and then there's a dispute about it. And what you're gonna need to do is you're gonna probably have to figure out whether or not there was a contract or not, and make some arguments about that. And so you're gonna be looking for these three elements. You're gonna be looking for offer acceptance and consideration, and you're gonna show your professor, or whoever's gonna be reading this exam that you recognize that there's these three elements in there. And then one of them is probably gonna be a little less clear than the others. So you're gonna have to try to make different arguments about it. So for example, the offer and the acceptance part might be pretty clear. So you'll, you'll talk about those. And then when you get to consideration, you'll have to start making some arguments about whether there really was consideration.
Speaker 0 00:10:03 I see. Yeah. I recall that, that typically I would be focusing in my, on my exams on whether or not as of a certain point in time, the parties had formed a contract or not.
Speaker 1 00:10:18 Yeah. And, and so there might be an example where they say, um, you know, they agreed, they wrote out a contract to sell a car and the person, you know, the, the person getting the car was gonna give $1 to the car, you know, like maybe it's a parent giving a car to a child or a friend giving a car to another friend, but they want it to be a contract for some reason. And they say, well, you give me the car, I'll give you $1. And the $1 is supposed to be like consideration, but is it really consideration? Is there really value in that? Or is it just symbolic? So that's the kind of thing that might come up.
Speaker 0 00:10:56 Oh, that's, that's helpful because it also suggests how you would want to organize your law school essay by addressing each of these elements, but making sure that you focus on the element that in dispute, um, the most,
Speaker 1 00:11:14 Yeah, exactly. Because the, when you write a law school exam, they're looking for you to go to know all the elements and to work through each of the elements and then focus on and identify the one that's sort of the most important and that's called issue
Speaker 0 00:11:29 Spotting. Ooh, that's right. That's right. And an issue. How would you, how would you explain an issue? In other words,
Speaker 1 00:11:37 An issue is a question that you have to figure out the answer to in order to be able to answer the bigger question of whether there was a, a contract or not. So Dan, has this been a helpful episode for you?
Speaker 0 00:11:48 Yeah, it's certainly, it's certainly given me a lot to consider.
Speaker 1 00:11:51 So you're saying there's a lot of consideration in this episode.
Speaker 0 00:11:54 Yes. There's a, there's a lot of consideration, but there's no legal consideration.
Speaker 1 00:12:00 Okay. Well, thanks for, thanks for thinking through the, the elements of contract formation with me.
Speaker 0 00:12:05 Thank you, Steve. And stay essential.
Speaker 1 00:12:07 Stay essential, Dan.
