Meeting of the minds (also referred to as mutual agreement, mutual assent, or ''consensus ad idem'') is a phrase in

contract law A contract is an agreement that specifies certain legally enforceable rights and obligations pertaining to two or more Party (law), parties. A contract typically involves consent to transfer of goods, Service (economics), services, money, or pr ...

used to describe the intentions of the parties forming the contract. In particular, it refers to the situation where there is a common understanding in the formation of the contract. Formation of a contract is initiated with a proposal or offer. This condition or element is considered a requirement to the formation of a

contract A contract is an agreement that specifies certain legally enforceable rights and obligations pertaining to two or more parties. A contract typically involves consent to transfer of goods, services, money, or promise to transfer any of thos ...

in some jurisdictions.

History

Richard Austen-Baker has suggested that the perpetuation of the idea of "meeting of minds" may come from a misunderstanding of the Latin term ''consensus ad idem'', which actually means "agreement to the amething". There must be

evidence Evidence for a proposition is what supports the proposition. It is usually understood as an indication that the proposition is truth, true. The exact definition and role of evidence vary across different fields. In epistemology, evidence is what J ...

that the parties had each, from an objective perspective, engaged in conduct manifesting their assent, and a contract will be formed when the parties have met such a requirement.

Concept in academic work

German jurist

Friedrich Carl von Savigny Friedrich Carl von Savigny (21 February 1779 – 25 October 1861) was a German jurist and historian. Early life and education Savigny was born at Frankfurt am Main, of a family recorded in the history of Lorraine, deriving its name from the cast ...

is usually credited with developing the will theory of contract in his work '' System des heutigen Römischen Rechts'' (1840). Sir Frederick Pollock is one person known for expounding the idea of a contract based on a meeting of minds, at which time it gained much support in the courts. Oliver Wendell Holmes wrote in 1897 that a meeting of minds was really a fiction. The English contracts scholar Richard Austen-Baker has suggested that the perpetuation of the concept into current times is based on a confusion of it with the concept of a ''consensus ad idem'' ("agreement to the same hing) which is an undoubted requirement of synallagmatic contracting, and that this confusion may be the result of recent ignorance of Latin.

Use in case law

In '' Household Fire and Carriage Accident Insurance Co Ltd v Grant'' (1879) 4 Ex D 216, Thesiger LJ said, in the course of a judgment on the postal rule, In ''

Carlill v Carbolic Smoke Ball Company ''Carlill v Carbolic Smoke Ball Company'is an English contract law decision by the Court of Appeal, which held an advertisement containing certain terms to get a reward constituted a binding unilateral offer that could be accepted by anyone w ...

'' 8931 QB 256, Bowen LJ said, In ''Balfour v Balfour'' 9192 KB 571, Atkin LJ said, In '' Baltimore & Ohio R. Co. v. United States'' (1923) the

US Supreme Court The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all Federal tribunals in the United States, U.S. federal court cases, and over Stat ...

said an

implied in fact contract An implied-in-fact contract is a form of an implied contract formed by non-verbal conduct, rather than by explicit words. The United States Supreme Court has defined "an agreement 'implied in fact'" as "founded upon a meeting of minds, which, alth ...

is, The

reasoning Reason is the capacity of consciously applying logic by drawing valid conclusions from new or existing information, with the aim of seeking the truth. It is associated with such characteristically human activities as philosophy, religion, scien ...

is that a party should not be held to a

that they were not even aware existed. A mutual

promise A promise is a commitment by someone to do or not do something. As a noun ''promise'' means a declaration assuring that one will or will not do something. As a verb it means to commit oneself by a promise to do or give. It can also mean a capacity ...

between friends over simple personal matters should not be a situation where legal remedies are to be used. Equally, any such agreement where the obligation is primarily a

moral A moral (from Latin ''morālis'') is a message that is conveyed or a lesson to be learned from a story or event. The moral may be left to the hearer, reader, or viewer to determine for themselves, or may be explicitly encapsulated in a maxim. ...

one rather than a legal one should not be enforceable. It is only when all parties involved are aware of the formation of a ''legal obligation'' is there a meeting of the minds. However, the awareness of a legal obligation is established, not through each party's subjective understanding of the terms, but on "objective indicators," based on what each party said and did. Under the formalist theory of contract, every contract must have six elements: offer,

acceptance Acceptance in psychology is a person's recognition and assent to the finality of a situation without attempting to change or protest it. This plays out at both the individual and societal level as people experience change. Types of acceptanc ...

consideration Consideration is a concept of English law, English common law and is a necessity for simple contracts but not for special contracts (contracts by deed). The concept has been adopted by other common law jurisdictions. It is commonly referred to a ...

, ''meeting of the minds'', capacity and

legality Legality, in respect of an act, agreement, or contract is the state of being consistent with the law or of being lawful or unlawful in a given jurisdiction, and the construct of power. ''Merriam-Webster'' defines legality as "1: attachment to or ...

. Many other contracts, but not all types of contracts, also must be in writing and be signed by the responsible party, in an element called form.

Vices of consent

Mutual assent is vitiated by actions such as

fraud In law, fraud is intent (law), intentional deception to deprive a victim of a legal right or to gain from a victim unlawfully or unfairly. Fraud can violate Civil law (common law), civil law (e.g., a fraud victim may sue the fraud perpetrato ...

undue influence Undue influence (UI) is a psychological process by which a person's free will and judgement is supplanted by that of another. It is a legal term and the strict definition varies by jurisdiction. Generally speaking, it is a means by which a person ...

duress Coercion involves compelling a party to act in an involuntary manner through the use of threats, including threats to use force against that party. It involves a set of forceful actions which violate the free will of an individual in order to i ...

(see per minas), mutual mistake, or

misrepresentation In common law jurisdictions, a misrepresentation is a False statements of fact, false or misleading''Royal Mail Case, R v Kylsant''

931 Year 931 ( CMXXXI) was a common year starting on Saturday of the Julian calendar. Events By place North Africa * The Ummayad Caliphate of Córdoba invades and conquers the city of Ceuta, which was ruled by the Berber dynasty Banu I ...

Question of law, statement of fact made during negotiations by one party to another, the statement then in ...

. This may render a contract void or

unenforceable An unenforceable contract or transaction is one that is valid but one the court will not enforce. Unenforceable is usually used in contradiction to void (or ''void ab initio'') and voidable. If the parties perform the agreement, it will be valid ...

Notes

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References