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 a legally enforceable agreement between two or more parties that creates, defines, and governs mutual rights and obligations between them. A contract typically involves the transfer of goods, services, money, or a promise to t ...

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 a legally enforceable agreement between two or more parties that creates, defines, and governs mutual rights and obligations between them. A contract typically involves the transfer of goods, services, money, or a promise to tr ...

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 this proposition. It is usually understood as an indication that the supported proposition is true. What role evidence plays and how it is conceived varies from field to field. In epistemology, evidenc ...

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 The posting rule (or mailbox rule in the United States, also known as the "postal rule" or "deposited acceptance rule") is an exception to the general rule of contract law in common law countries that acceptance of an offer takes place when co ...

, In ''

Carlill v Carbolic Smoke Ball Company ''Carlill v Carbolic Smoke Ball Company'' 892EWCA Civ 1is an English contract law decision by the English Court of Appeal">Court of Appeal, which held an advertisement containing certain terms to get a reward constituted a binding unilateral of ...

'' 8931 QB 256, Bowen LJ said, In
Balfour v Balfour
'

919 __NOTOC__ Year 919 ( CMXIX) was a common year starting on Friday (link will display the full calendar) of the Julian calendar. Events By Place Byzantine Empire * March 25 – Romanos Lekapenos, admiral (''droungarios'') of the Byz ...

2 KB 571,

Atkin LJ James Richard Atkin, Baron Atkin, (28 November 1867 – 25 June 1944), commonly known as Dick Atkin, was an Australian-born British judge, who served as a lord of appeal in ordinary from 1928 until his death in 1944. He is especially remembere ...

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 U.S. federal court cases, and over state court cases that involve a point of ...

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 conclusions from new or existing information, with the aim of seeking the truth. It is closely associated with such characteristically human activities as philosophy, science, langu ...

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 A legal remedy, also referred to as judicial relief or a judicial remedy, is the means with which a court of law, usually in the exercise of civil law jurisdiction, enforces a right, imposes a penalty, or makes another court order to impose its ...

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 human psychology is a person's assent to the reality of a situation, recognizing a process or condition (often a negative or uncomfortable situation) without attempting to change it or protest it. The concept is close in meaning to ...

consideration Consideration is a concept of 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. The court in '' Currie v Misa'' declar ...

, ''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. According to the Merriam-Webster Dictionary, legality is 1 : ...

. 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 intentional deception to secure unfair or unlawful gain, or to deprive a victim of a legal right. Fraud can violate civil law (e.g., a fraud victim may sue the fraud perpetrator to avoid the fraud or recover monetary compen ...

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 per ...

duress Coercion () is compelling a party to act in an involuntary manner by the use of threats, including threats to use force against a party. It involves a set of forceful actions which violate the free will of an individual in order to induce a desi ...

(see

per minas ''Per minas'', in English Common Law, is to engage in behaviour "by means of menaces or threats". The term comes from Latin. ''Per minas'' has been used as a defence of duress to certain crimes, as affecting the element of ''mens rea''. Will ...

), mutual mistake, or

misrepresentation In common law jurisdictions, a misrepresentation is a false or misleading '' R v Kylsant'' 931/ref> statement of fact made during negotiations by one party to another, the statement then inducing that other party to enter into a contract. The ...

. 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 vali ...

Notes

{{Reflist

References