REG CPA Exam: Understanding Contract Formation Between Parties

Understanding Contract Formation Between Parties

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Brief Overview of the Importance of Contract Formation in Business and Legal Contexts

In this article, we’ll cover understanding contract formation between parties. Contracts are the foundation of business transactions and legal agreements. They provide a structured framework that ensures all parties involved have clear, enforceable expectations and obligations. This clarity reduces the potential for disputes, facilitates smoother operations, and enhances trust between entities. In the absence of well-formed contracts, businesses could face significant legal and financial risks, including misunderstandings, non-performance, and litigation.

A legally binding contract serves several critical functions:

  • Establishes Terms and Conditions: Clearly outlines the rights, duties, and obligations of all parties involved.
  • Provides Legal Protection: Offers a legal recourse in case of breach, ensuring that parties can enforce their rights.
  • Facilitates Business Relationships: Builds trust and sets a professional standard, crucial for long-term business relationships.
  • Ensures Compliance: Ensures that the agreement complies with relevant laws and regulations, minimizing the risk of legal issues.

Given the integral role contracts play in business and legal affairs, understanding how they are formed is essential for anyone involved in these fields.

Relevance of Contract Formation for the REG CPA Exam

For CPA candidates, particularly those preparing for the Regulation (REG) section of the CPA exam, a deep understanding of contract formation is indispensable. The REG section encompasses business law and federal taxation, with contract law being a significant component. Proficiency in contract formation principles is necessary for several reasons:

  1. Exam Content: Contract law is a core topic in the REG exam, covering the essential elements of contract formation, performance, and enforceability. Questions related to contracts test candidates’ knowledge of legal definitions, application of principles, and identification of valid and void contracts.
  2. Practical Application: In professional practice, CPAs often encounter situations where they need to draft, review, or advise on contracts. Whether dealing with clients’ business agreements, employment contracts, or vendor arrangements, a solid grasp of contract law helps ensure compliance and mitigates risks.
  3. Ethical Standards: Understanding contracts also aligns with the ethical responsibilities of CPAs. Ensuring that contracts are fair, transparent, and legally binding upholds the integrity of the profession.
  4. Client Advisory: CPAs frequently advise clients on financial and business matters, including the implications of contract terms. Knowledge of contract law equips CPAs to provide sound advice, helping clients make informed decisions and avoid legal pitfalls.

By mastering the principles of contract formation, CPA candidates not only enhance their exam readiness but also their ability to serve clients effectively and uphold high professional standards.

Definition of a Contract

Legal Definition of a Contract

A contract is a legally binding agreement between two or more parties that creates mutual obligations enforceable by law. The fundamental purpose of a contract is to formalize the terms and conditions agreed upon by the parties involved, ensuring that each party fulfills their respective duties as stipulated. Contracts can be written, oral, or implied by conduct, though written contracts are preferred for clarity and ease of enforcement.

In legal terms, a contract is defined as an agreement that:

  • Involves an offer by one party and acceptance by another.
  • Is supported by consideration (something of value exchanged between the parties).
  • Is entered into by parties with the intention of creating legal relations.
  • Has lawful terms and purposes.

Essential Elements of a Contract

For a contract to be valid and enforceable, it must contain five essential elements: offer, acceptance, consideration, mutual assent, and legality. Each of these elements plays a critical role in the formation and validity of a contract.


An offer is a clear and definite proposal made by one party (the offeror) to another (the offeree) to enter into a contract on certain specified terms. The offer must be communicated to the offeree and must express the offeror’s intention to be bound by the terms if accepted. Key aspects of an offer include:

  • Definiteness: The terms of the offer must be clear and specific enough for the offeree to understand and accept.
  • Communication: The offer must be communicated to the offeree, ensuring they are aware of the proposal.
  • Intent: The offeror must intend to be legally bound by the offer upon acceptance.

An offer can be terminated by revocation, rejection, counteroffer, lapse of time, or operation of law.


Acceptance is the unequivocal agreement by the offeree to the terms of the offer. For acceptance to be valid:

  • Mirror Image Rule: The acceptance must match the terms of the offer exactly without any modifications.
  • Communication: Acceptance must be communicated to the offeror, either verbally, in writing, or through conduct.
  • Timeliness: Acceptance must occur within the time frame specified in the offer or within a reasonable period if no time frame is specified.

The mailbox rule states that acceptance is effective once it is dispatched, provided it is communicated through an authorized means.


Consideration refers to the value exchanged between the parties involved in the contract. It can take the form of money, goods, services, or a promise to do or refrain from doing something. For consideration to be valid:

  • Benefit-Detriment: Each party must receive a benefit and incur a detriment.
  • Bargained-For Exchange: The consideration must be the result of a mutual exchange between the parties.

Consideration must be sufficient but need not be adequate, meaning it must have some value but does not have to be equal in value to what is received in return. In some cases, promissory estoppel may serve as an alternative to consideration, where a party relies on a promise to their detriment.

Mutual Assent

Mutual assent, also known as a “meeting of the minds,” occurs when both parties have a common understanding of the essential terms and conditions of the contract. This agreement is typically evidenced by the offer and acceptance. The objective theory of contracts is used to determine mutual assent, focusing on the outward expressions of the parties rather than their internal intentions.

Mutual assent can be affected by factors such as mistake, fraud, duress, and undue influence. If any of these factors are present, the mutual assent may be invalid, rendering the contract void or voidable.


For a contract to be enforceable, its terms and purpose must be legal. Contracts involving illegal activities or purposes are void and unenforceable. This includes contracts that violate public policy or statutory law. If a contract’s subject matter or performance is illegal, the contract will not be upheld by the courts.

Contracts must also comply with relevant laws and regulations, ensuring that they do not involve prohibited activities or impose unfair terms on the parties involved.

By understanding and ensuring the presence of these essential elements, parties can form valid and enforceable contracts, providing a solid foundation for their agreements and legal protections.

Types of Contracts

Bilateral vs. Unilateral Contracts

Bilateral Contracts

A bilateral contract is an agreement in which both parties make mutual promises to each other. Each party is both a promisor (making a promise) and a promisee (receiving a promise). The contract is formed when the promises are exchanged, and both parties are bound to fulfill their obligations.


  • A buyer agrees to purchase goods from a seller, and the seller agrees to deliver the goods to the buyer. Both parties have made promises that are enforceable by law.

Unilateral Contracts

A unilateral contract is an agreement in which only one party makes a promise in exchange for the other party’s performance. The contract is formed when the requested performance is completed, and only the party making the promise is legally bound to fulfill it.


  • A person offers a reward for the return of a lost dog. The contract is formed only when someone finds and returns the dog, at which point the person who made the offer is obligated to pay the reward.

Express vs. Implied Contracts

Express Contracts

An express contract is an agreement in which the terms are explicitly stated, either orally or in writing. The parties clearly articulate their intentions, obligations, and the specifics of the contract.


  • A written lease agreement for renting an apartment, where the lease duration, rent amount, and other conditions are clearly outlined.

Implied Contracts

An implied contract is an agreement that is not explicitly stated but is inferred from the parties’ actions, conduct, or circumstances. There are two types of implied contracts: implied-in-fact and implied-in-law (quasi-contract).

  • Implied-in-Fact Contract: Formed by the conduct of the parties rather than written or spoken words.
  • Example: When a customer sits in a barber’s chair and receives a haircut, it is implied that the customer will pay for the service.
  • Implied-in-Law Contract (Quasi-Contract): Created by a court to prevent unjust enrichment, even if there was no intention to form a contract.
  • Example: A person receives emergency medical services while unconscious. The law implies a contract to pay for the services rendered.

Executed vs. Executory Contracts

Executed Contracts

An executed contract is one in which all parties have fulfilled their obligations, and nothing remains to be done. The contract is considered complete.


  • A purchase agreement where the buyer has paid for the goods and the seller has delivered them. Both parties have performed their duties under the contract.

Executory Contracts

An executory contract is one in which some or all obligations have yet to be performed. The contract remains active until all terms are fulfilled.


  • A construction contract where the builder has agreed to construct a house within a year. The contract is executory until the house is completed and handed over to the buyer.

Valid, Void, Voidable, and Unenforceable Contracts

Valid Contracts

A valid contract is one that meets all the essential elements of contract formation: offer, acceptance, consideration, mutual assent, and legality. It is enforceable by law.


  • A legally binding agreement to sell a car where both parties agree on the price and terms, and the contract complies with all legal requirements.

Void Contracts

A void contract is one that lacks one or more of the essential elements, making it invalid from the outset. It has no legal effect and cannot be enforced.


  • A contract for an illegal activity, such as selling prohibited drugs. Such a contract is void and unenforceable.

Voidable Contracts

A voidable contract is one that is valid but may be legally avoided, canceled, or annulled at the option of one of the parties. Reasons for voidability include misrepresentation, fraud, duress, undue influence, or lack of capacity.


  • A contract signed by a minor. The minor has the option to void the contract upon reaching the age of majority.

Unenforceable Contracts

An unenforceable contract is one that is valid but cannot be enforced due to certain legal defenses or statutory requirements. These contracts are not void or voidable but cannot be upheld in a court of law.


  • A verbal agreement to sell land. Most jurisdictions require such agreements to be in writing under the Statute of Frauds, making a verbal agreement unenforceable.

Understanding the various types of contracts and their characteristics is crucial for anyone involved in legal or business transactions. This knowledge helps ensure that agreements are properly formed, valid, and enforceable, providing a solid foundation for all parties involved.

Elements of a Contract


Definition and Characteristics of an Offer

An offer is a clear and definite proposal made by one party (the offeror) to another party (the offeree) with the intention of forming a legally binding contract. The offer sets out the terms under which the offeror is willing to enter into an agreement and invites the offeree to accept these terms.

Characteristics of an Offer:

  • Clear and Definite: The terms of the offer must be specific and unambiguous, leaving no room for interpretation.
  • Communicated to the Offeree: The offer must be communicated to the intended offeree, ensuring that they are aware of the proposal.
  • Intent to be Bound: The offeror must intend to be legally bound by the terms of the offer upon acceptance.

Requirements for a Valid Offer

For an offer to be valid, it must meet the following requirements:


  • The terms of the offer must be clear and specific enough for the offeree to understand and accept. This includes details such as price, quantity, quality, and the parties involved. An indefinite or vague offer cannot form the basis of a binding contract.


  • The offer must be effectively communicated to the offeree. This can be done orally, in writing, or through conduct. The offeree must be aware of the offer to accept it.


  • The offeror must demonstrate a serious intention to be bound by the terms of the offer. This intent is evaluated based on an objective standard, meaning how a reasonable person in the offeree’s position would interpret the offeror’s actions and words.

Termination of an Offer

An offer does not remain open indefinitely and can be terminated in several ways:


  • The offeror can revoke the offer at any time before it is accepted by the offeree. The revocation must be communicated to the offeree to be effective. Once the offeree learns of the revocation, the offer is no longer valid.


  • If the offeree rejects the offer, it is terminated. A rejection can be explicit or implied by the offeree’s conduct. Once an offer is rejected, it cannot be accepted later unless the offeror renews it.


  • If the offeree makes a counteroffer, it constitutes a rejection of the original offer and proposes new terms. The original offer is terminated, and the counteroffer creates a new offer that the original offeror can accept or reject.

Lapse of Time:

  • An offer can terminate if it is not accepted within a specified time frame. If no time frame is specified, the offer terminates after a reasonable period, which depends on the nature of the offer and the circumstances.

Operation of Law:

  • Certain events can automatically terminate an offer by operation of law, including:
    • Death or Incapacity: The death or legal incapacity of either the offeror or the offeree.
    • Destruction of Subject Matter: If the subject matter of the offer is destroyed before acceptance.
    • Illegality: If the subject matter of the offer becomes illegal before acceptance.

Understanding the nature and requirements of an offer is fundamental to the formation of a valid contract. A clear, communicated, and intentional offer sets the stage for acceptance and the creation of a legally binding agreement. Recognizing how offers can be terminated ensures that parties are aware of the conditions under which an offer remains open and enforceable.


Definition and Methods of Acceptance

Acceptance is the unequivocal agreement by the offeree to the terms of the offer. For a contract to be formed, the acceptance must be communicated to the offeror, demonstrating that the offeree agrees to be bound by the terms proposed.

Methods of Acceptance:

  • Oral Acceptance: The offeree verbally communicates their agreement to the offeror.
  • Written Acceptance: The offeree provides a written statement indicating their acceptance of the offer.
  • Acceptance by Conduct: The offeree demonstrates their acceptance through actions that unequivocally indicate agreement, such as beginning performance of the contract terms.

For acceptance to be valid, it must be made in a manner prescribed by the offeror, or if no method is prescribed, in a manner that is reasonable under the circumstances.

Mirror Image Rule

The mirror image rule stipulates that the acceptance must exactly match the terms of the offer without any modifications. Any deviation from the terms of the original offer constitutes a counteroffer rather than an acceptance. This rule ensures that both parties have a mutual understanding of the agreement.


  • If the offeror proposes to sell a car for $10,000 and the offeree responds by agreeing to buy the car for $9,500, this response is not an acceptance but a counteroffer.

Mailbox Rule

The mailbox rule, also known as the postal rule, is a legal doctrine that determines when an acceptance becomes effective. According to the mailbox rule, acceptance is effective once it is dispatched (sent), provided it is communicated through an authorized means. This rule applies even if the offeror has not yet received the acceptance.

Key Points of the Mailbox Rule:

  • Acceptance is effective upon dispatch, not upon receipt.
  • The rule applies only to acceptances, not to revocations, rejections, or counteroffers.
  • The rule does not apply if the offer specifies that acceptance must be received to be effective.


  • If the offeree mails a letter of acceptance on Monday and the offeror receives it on Wednesday, the acceptance is effective as of Monday, the date of dispatch.

Exceptions and Special Circumstances

While the general rules of acceptance are straightforward, there are exceptions and special circumstances that may affect the validity of acceptance:

Silence as Acceptance:

  • Generally, silence cannot be construed as acceptance. However, if the offeree has a duty to respond or if past dealings between the parties imply that silence indicates acceptance, it may be valid.

Conditional Acceptance:

  • If the offeree accepts the offer but imposes new conditions, this is not an acceptance but a counteroffer. The original offeror must accept the new terms for a contract to be formed.

Acceptance by Performance:

  • In unilateral contracts, acceptance occurs when the offeree completes the requested performance. No notification of acceptance is necessary unless required by the offeror.

Late or Defective Acceptance:

  • An acceptance that is late or does not comply with the terms of the offer is generally considered a counteroffer. However, if the offeror chooses to accept the late or defective acceptance, a contract may still be formed.

Electronic Communications:

  • In the digital age, acceptance via electronic means (e.g., email, online forms) is common. The effectiveness of such acceptance depends on the agreed method of communication and applicable laws governing electronic transactions.

Understanding the concept of acceptance and its various aspects is crucial for the formation of a valid contract. Clear and unequivocal acceptance ensures that both parties are on the same page, thereby creating a legally enforceable agreement. Recognizing the nuances and exceptions in the acceptance process helps in navigating complex contractual scenarios.


Definition and Purpose of Consideration

Consideration is a fundamental element of a contract, representing the value exchanged between the parties involved. It can be defined as something of legal value given in return for a promise, performance, or forbearance. Consideration is what each party brings to the table, providing the incentive and reason for the other party to enter into the agreement. The primary purpose of consideration is to validate the contract and ensure that there is a mutual exchange of value, making the agreement legally binding.

Key Purposes of Consideration:

  • Legal Bindingness: Ensures that the contract is enforceable by law.
  • Mutual Obligation: Establishes that both parties have duties and benefits under the contract.
  • Incentive for Agreement: Provides motivation for parties to fulfill their contractual promises.

Types of Consideration


  • This type of consideration involves a benefit to the promisor or a detriment to the promisee. The promisor gains something of value, while the promisee either gives up something of value or undertakes a responsibility.


  • A person agrees to pay $500 for a painting. The benefit to the buyer is the painting, while the detriment is the payment of $500. Conversely, the benefit to the seller is the $500, and the detriment is the transfer of ownership of the painting.

Bargained-For Exchange:

  • In a bargained-for exchange, both parties negotiate and agree on the terms of the contract. Each party’s promise or performance is given in exchange for the other party’s promise or performance.


  • An employer offers a job to a candidate in exchange for their promise to work for the company. The job offer and the candidate’s promise to work constitute a bargained-for exchange.

Adequacy and Sufficiency of Consideration

Adequacy of Consideration:

  • Adequacy refers to the fairness of the amount or value of the consideration exchanged. Courts generally do not evaluate the adequacy of consideration as long as it is legally sufficient. The parties are free to determine the value of their exchange, even if it seems disproportionate.


  • Selling a car worth $10,000 for $1,000 is still considered valid if both parties voluntarily agree to the terms, despite the apparent imbalance in value.

Sufficiency of Consideration:

  • Sufficiency means that the consideration must have legal value. It must be something of substance that the law recognizes as valuable. This can include money, goods, services, or a promise to act or refrain from acting in a certain way.


  • Promising to paint someone’s house in exchange for their promise to pay $2,000 is sufficient consideration, as both promises have legal value.

Promissory Estoppel as an Alternative to Consideration

Promissory estoppel is a legal doctrine that allows a party to enforce a promise even in the absence of consideration, provided certain conditions are met. It serves as an alternative to the traditional requirement of consideration, preventing one party from suffering a detriment due to their reliance on a promise made by another party.

Elements of Promissory Estoppel:

  1. Clear and Definite Promise: The promisor must make a clear and unequivocal promise to the promisee.
  2. Reliance: The promisee must reasonably rely on the promise, changing their position based on the expectation that the promise will be fulfilled.
  3. Detriment: The promisee suffers a substantial detriment or harm as a result of their reliance on the promise.
  4. Injustice: It would be unjust not to enforce the promise, given the promisee’s reliance and resulting detriment.


  • An employer promises an employee a significant bonus at the end of the year if they meet certain performance targets. The employee relies on this promise and works extra hours to meet the targets. If the employer then refuses to pay the bonus, the employee may invoke promissory estoppel to enforce the promise.

Understanding consideration is essential for recognizing what makes a contract valid and enforceable. By ensuring that each party provides something of value and that their exchange meets legal standards, consideration forms the backbone of contractual agreements. Promissory estoppel further reinforces the principle of fairness, protecting parties who rely on promises to their detriment.

Mutual Assent

Meeting of the Minds

Mutual assent, often referred to as a “meeting of the minds,” is a fundamental principle in contract law that indicates both parties have a shared understanding and agreement on the terms and conditions of the contract. This concept ensures that each party has the same expectations and intentions, leading to a mutual agreement.

Key Aspects of Meeting of the Minds:

  • Agreement on Terms: Both parties must agree on the essential terms of the contract, such as the subject matter, price, and obligations.
  • Intent to Enter into a Contract: Both parties must intend to create a binding agreement.
  • Communication: Effective communication between parties to ensure clarity and understanding of the terms.

A true meeting of the minds is achieved when both parties have a clear and mutual understanding of their respective rights and obligations under the contract.

Objective Theory of Contracts

The objective theory of contracts is a legal doctrine used to determine whether mutual assent exists. Under this theory, the focus is on the outward expressions and actions of the parties rather than their internal, subjective intentions. Courts assess how a reasonable person in the position of each party would interpret the words and conduct of the other party.

Key Principles of the Objective Theory:

  • Reasonable Person Standard: Evaluates whether a reasonable person would believe that the parties intended to form a contract based on their actions and statements.
  • External Evidence: Considers the conduct, written agreements, and spoken words of the parties as evidence of their intent.
  • Clarity and Consistency: Assesses whether the terms and conditions of the agreement were clearly and consistently communicated.

By using the objective theory, courts ensure that contracts are evaluated based on observable and verifiable evidence, rather than subjective intentions.

Effect of Mistake, Fraud, Duress, and Undue Influence on Mutual Assent

The presence of mistake, fraud, duress, or undue influence can significantly impact mutual assent, potentially rendering a contract void or voidable. These factors undermine the voluntary and informed agreement required for a valid contract.


  • A mistake occurs when one or both parties have a false belief about a fundamental fact of the contract. Mistakes can be unilateral (one party) or mutual (both parties).
  • Mutual Mistake: If both parties are mistaken about a material fact, the contract may be voidable.
  • Unilateral Mistake: Generally, a contract is not voidable for a unilateral mistake unless the other party knew or should have known about the mistake and took advantage of it.


  • Both parties believe a painting is an original when, in fact, it is a replica. This mutual mistake about the painting’s authenticity can make the contract voidable.


  • Fraud involves intentional deception by one party to induce another to enter into a contract. Fraudulent misrepresentation can invalidate mutual assent.
  • Elements of Fraud: False representation of a material fact, knowledge of its falsity, intent to deceive, reasonable reliance by the victim, and resulting harm.


  • A seller knowingly lies about the condition of a car to make a sale. If the buyer relies on this false representation, the contract can be voided due to fraud.


  • Duress occurs when one party is forced or threatened into entering a contract against their free will. Contracts signed under duress lack genuine mutual assent.
  • Types of Duress: Physical threats, economic pressure, or unlawful threats can constitute duress.


  • A person is threatened with physical harm if they do not sign a contract. The contract is voidable because it was signed under duress.

Undue Influence:

  • Undue influence involves the improper use of power or trust by one party to influence another party’s decision-making. This typically occurs in relationships where one party is in a position of authority or trust.
  • Factors: Relationship dynamics, pressure, and the resulting imbalance in decision-making.


  • An elderly person is pressured by a trusted caregiver to sign over property rights. The contract can be voided due to undue influence.

Understanding the concept of mutual assent and its implications is crucial for ensuring the validity and enforceability of a contract. Recognizing the effects of mistake, fraud, duress, and undue influence helps in identifying situations where genuine agreement may be compromised, thereby protecting the integrity of contractual agreements.


Legal Purpose and Subject Matter

For a contract to be enforceable, it must have a legal purpose and subject matter. This means the terms and objectives of the contract must comply with the law and not involve any illegal activities. The contract should be formed with the intent to perform actions that are lawful and permissible by the regulatory framework governing the parties involved.

Key Aspects of Legal Purpose and Subject Matter:

  • Compliance with Laws: The contract must adhere to relevant federal, state, and local laws and regulations.
  • Lawful Activities: The activities and obligations outlined in the contract must be legal.
  • Public Policy Considerations: The contract should not violate public policy or ethical standards set by society.


  • A contract for the sale of goods where the goods are legal to sell and purchase (e.g., a contract for the sale of furniture) has a legal purpose and subject matter.

Contracts Contrary to Public Policy

Contracts that are contrary to public policy are considered unenforceable because they go against societal norms, ethical standards, or statutory provisions. Public policy contracts are those that may:

  • Encourage illegal or immoral acts.
  • Harm the public interest or welfare.
  • Violate established legal principles or regulations.

Examples of Contracts Contrary to Public Policy:

  • Contracts for Illegal Activities: Agreements to commit crimes, such as selling illegal drugs or smuggling goods.
  • Contracts Involving Immorality: Agreements that promote immoral conduct, such as contracts for prostitution.
  • Contracts Restraining Trade: Agreements that unreasonably restrain trade or competition, such as certain non-compete clauses that are overly restrictive.
  • Contracts with Unconscionable Terms: Agreements with terms that are so unfair or oppressive that they shock the conscience of the court.

Effects of Illegality on Contract Enforceability

When a contract involves illegal activities or violates public policy, it has significant effects on its enforceability. Generally, such contracts are void and cannot be enforced by either party. The courts will not assist in enforcing illegal contracts, and the parties cannot seek legal remedies for breaches of these contracts.

Effects of Illegality:

  • Void Contracts: An illegal contract is void from the outset, meaning it has no legal effect and cannot be enforced.
  • No Legal Remedies: Parties involved in an illegal contract cannot seek damages or specific performance for breach of contract.
  • Restitution: In some cases, the courts may allow for restitution to prevent unjust enrichment. This means that if one party has conferred a benefit on the other under an illegal contract, the court may order the return of that benefit to prevent unjust enrichment, but this is typically limited.


  • If two parties enter into a contract for the illegal sale of drugs, the contract is void, and neither party can sue the other for breach of contract. However, if one party has paid money to the other, the court may order the return of the money to prevent unjust enrichment.

Understanding the legality of a contract’s purpose and subject matter is crucial for ensuring that the agreement is enforceable. Contracts that involve illegal activities or violate public policy are not only unenforceable but also expose the parties to potential legal consequences. Ensuring that contracts are formed for lawful purposes and comply with relevant laws and regulations protects the parties and upholds the integrity of contractual agreements.

Capacity to Contract

Legal Capacity

Legal capacity refers to the ability of a party to enter into a binding contract. For a contract to be valid, all parties involved must have the legal capacity to contract, meaning they must have the mental and legal ability to understand the terms and consequences of the agreement. Several categories of individuals may lack legal capacity, including minors, intoxicated persons, and mentally incapacitated persons.


In most jurisdictions, a minor is defined as an individual under the age of 18. Contracts entered into by minors are generally considered voidable at the option of the minor. This means that while the minor can choose to honor the contract, they also have the right to disaffirm it, rendering it invalid. However, there are exceptions for contracts involving necessities, such as food, clothing, and shelter, where minors are typically held accountable.

Key Points:

  • Voidable Contracts: Minors can disaffirm contracts before reaching the age of majority or within a reasonable time thereafter.
  • Necessities: Contracts for necessities are generally enforceable against minors to ensure they have access to essential goods and services.


  • A 17-year-old enters into a contract to buy a car. The minor can disaffirm the contract and return the car, but they may still be liable for reasonable use or damages.

Intoxicated Persons

Individuals who are intoxicated at the time of entering into a contract may lack the capacity to contract if their intoxication prevents them from understanding the nature and consequences of the agreement. Like contracts with minors, contracts made by intoxicated persons are typically voidable at the option of the intoxicated party. To disaffirm the contract, the intoxicated person must do so promptly upon becoming sober.

Key Points:

  • Understanding: The intoxicated person must have been unable to understand the contract’s nature and consequences due to their intoxication.
  • Disaffirmation: The intoxicated person must disaffirm the contract shortly after regaining sobriety.


  • An individual who signs a contract while severely intoxicated can disaffirm the agreement upon becoming sober, provided they can prove they were incapable of understanding the contract at the time of signing.

Mentally Incapacitated Persons

Persons with mental incapacities, such as those with mental illnesses or cognitive impairments, may also lack the capacity to contract. If an individual is adjudged by a court to be mentally incapacitated, contracts entered into by that person are typically void. If a person has not been legally declared incapacitated but is still mentally impaired, the contract is voidable at their option.

Key Points:

  • Court Adjudication: If a court has declared a person mentally incapacitated, any contract entered into by that person is void.
  • Voidable Contracts: If the person is not legally declared incapacitated but is impaired, they can void the contract if they lacked the understanding at the time of agreement.


  • A person with severe cognitive impairment enters into a complex financial agreement. If they can prove their incapacity, they can void the contract.

Effects of Incapacity on Contract Validity

The incapacity of one or more parties in a contract can significantly impact its validity and enforceability. The primary effect of incapacity is that the contract becomes voidable or void, depending on the circumstances and the type of incapacity.

Voidable Contracts:

  • Contracts with minors, intoxicated persons, and mentally impaired individuals who have not been legally declared incapacitated are generally voidable. The incapacitated party can choose to either affirm or disaffirm the contract upon gaining capacity or sobriety.

Void Contracts:

  • Contracts are void if entered into by individuals who have been legally declared incapacitated by a court. Such contracts have no legal effect and cannot be enforced by either party.


  • The incapacitated party must act promptly to disaffirm the contract upon regaining capacity. Failure to do so within a reasonable time may result in the contract being deemed ratified.


  • If a contract is disaffirmed, the incapacitated party may be required to return any benefits received under the contract, to the extent possible, to prevent unjust enrichment.

Understanding the concept of legal capacity and its implications is crucial for ensuring the validity of contracts. Parties must have the mental and legal ability to comprehend the terms and consequences of their agreements to create enforceable contracts. Recognizing the impact of incapacity helps protect vulnerable individuals and maintain the integrity of contractual relationships.

Statute of Frauds

Definition and Purpose

The Statute of Frauds is a legal doctrine that requires certain types of contracts to be in writing to be enforceable. Its primary purpose is to prevent fraud and misunderstandings by ensuring that there is clear evidence of the agreement and its terms. The Statute of Frauds is designed to protect parties from false claims about the existence and specifics of a contract, reducing the likelihood of disputes and litigation.

Key Objectives of the Statute of Frauds:

  • Preventing Fraud: Reduces the risk of fraudulent claims by requiring written evidence of certain agreements.
  • Clarity and Certainty: Provides clear documentation of the contract’s terms and conditions, minimizing ambiguity and misunderstandings.
  • Legal Enforceability: Ensures that contracts involving significant obligations or long-term commitments are taken seriously and are legally binding.

Types of Contracts that Must Be in Writing

The Statute of Frauds typically applies to specific types of contracts that are considered significant or prone to disputes. While the exact categories can vary by jurisdiction, the following are common types of contracts that generally must be in writing:

  1. Contracts for the Sale of Real Estate:
    • Any agreement involving the transfer of an interest in land, including sales, leases for more than one year, and mortgages.
  2. Contracts that Cannot Be Performed Within One Year:
    • Contracts that, by their terms, cannot be fully performed within one year from the date of agreement.
  3. Contracts for the Sale of Goods Over a Certain Value:
    • Under the Uniform Commercial Code (UCC), contracts for the sale of goods priced at $500 or more must be in writing.
  4. Promises to Pay the Debt of Another (Suretyship Agreements):
    • Contracts in which one party promises to pay the debt or obligation of another party.
  5. Contracts Made in Consideration of Marriage:
    • Agreements made in consideration of marriage, such as prenuptial agreements.
  6. Contracts for Executor’s Promise to Pay Estate Debts:
    • Promises by an executor or administrator to pay the debts of an estate from their own funds.


  • A contract for the sale of a house must be in writing to be enforceable. An oral agreement for such a transaction would not meet the requirements of the Statute of Frauds and could not be enforced in court.

Requirements for a Written Contract

For a contract to satisfy the Statute of Frauds, it must meet specific requirements. While these requirements can vary slightly by jurisdiction, the following elements are generally necessary:

  1. Written Memorandum:
    • The contract or a written memorandum of the agreement must be in writing. This can include a formal contract, a letter, or other written documentation that outlines the essential terms of the agreement.
  2. Signature of the Party to Be Charged:
    • The writing must be signed by the party against whom enforcement is sought, or their authorized agent. This signature indicates that the party acknowledges and agrees to the contract’s terms.
  3. Essential Terms:
    • The writing must include the essential terms of the contract. These terms typically include:
      • Identification of Parties: Names or sufficient description of the parties involved.
      • Subject Matter: A clear description of the contract’s subject matter (e.g., the goods, services, or property involved).
      • Consideration: The value exchanged between the parties.
      • Key Terms: Any other essential terms specific to the type of contract, such as price, quantity, and duration.


  • A written contract for the sale of goods valued at $1,000 should include the names of the buyer and seller, a description of the goods, the price, and the signatures of both parties.

Exceptions to the Statute of Frauds

While the Statute of Frauds establishes a general rule requiring certain contracts to be in writing, there are exceptions where an oral contract may still be enforceable:

  1. Partial Performance:
    • If one party has partially performed their obligations under the contract, and this performance is consistent with the terms of the agreement, the contract may be enforced despite the lack of a written document.
  2. Admissions in Court:
    • If the party against whom enforcement is sought admits in court that a contract was made, the contract may be enforced even if it was not in writing.
  3. Promissory Estoppel:
    • If one party reasonably relies on the oral promise of the other party to their detriment, the contract may be enforced to prevent injustice, even if it does not meet the Statute of Frauds requirements.

Understanding the Statute of Frauds and its requirements is crucial for ensuring that certain types of contracts are legally enforceable. By requiring written documentation, the Statute of Frauds protects parties from fraud and misunderstandings, providing clear evidence of the agreement and its terms. Knowing when a contract must be in writing and what elements it must contain helps parties create enforceable agreements and avoid legal pitfalls.

Parol Evidence Rule

Definition and Purpose

The Parol Evidence Rule is a legal principle that governs the admissibility of oral and written statements, not included in the written contract, made prior to or at the time of contracting. The rule is intended to preserve the integrity of written agreements by preventing parties from introducing extrinsic evidence that would alter or contradict the terms of a written contract.

Key Objectives of the Parol Evidence Rule:

  • Preserve Written Agreements: Ensures that the final written contract is the definitive and complete representation of the parties’ agreement.
  • Reduce Fraud and Misrepresentation: Prevents parties from using prior or contemporaneous statements to undermine the written contract.
  • Promote Certainty and Predictability: Provides clarity and stability in contractual relationships by upholding the written document as the ultimate source of the parties’ intentions.

Exceptions to the Parol Evidence Rule

While the Parol Evidence Rule generally prohibits the use of extrinsic evidence to alter or contradict a written contract, there are several notable exceptions where such evidence may be admissible:

1. Clarifying Ambiguities

When the language of the written contract is ambiguous or unclear, parol evidence can be introduced to clarify the meaning of the terms. This helps ensure that the parties’ true intentions are accurately reflected in the contract.


  • If a contract uses a term that can be interpreted in multiple ways, parol evidence may be used to explain what the parties meant by that term.

2. Evidence of Fraud, Duress, or Mistake

Parol evidence is admissible to demonstrate that the contract is void or voidable due to factors such as fraud, duress, or mistake. This exception helps protect parties from being bound by agreements that were not entered into freely and voluntarily.


  • If one party claims they were forced to sign the contract under threat, parol evidence of the duress can be introduced to invalidate the contract.

3. Establishing a Condition Precedent

If the parties agreed that the contract would only become effective upon the occurrence of a specific event or condition, parol evidence can be used to establish the existence of this condition precedent.


  • If a contract for the sale of a house was contingent upon the buyer securing financing, parol evidence can be introduced to prove this condition.

4. Subsequent Modifications

Parol evidence is admissible to show that the parties agreed to modify the contract after it was executed. This exception recognizes that contracts may evolve over time and that subsequent agreements should be considered.


  • If the parties agree to change the delivery date of goods after signing the original contract, parol evidence of this modification can be introduced.

5. Partial Integration

When the written contract is a partial integration, meaning it does not represent the complete agreement between the parties, parol evidence may be used to supplement (but not contradict) the written terms. This helps fill in gaps and ensure the contract reflects the full scope of the parties’ agreement.


  • If a written contract outlines the price and quantity of goods but does not include delivery terms, parol evidence can be used to establish the agreed-upon delivery schedule.

6. Proving Illegality

Parol evidence is admissible to demonstrate that the contract is illegal or involves illegal activities. This exception helps ensure that courts do not enforce contracts that violate the law.


  • If a contract appears to be for the sale of legitimate goods but is actually a cover for illegal transactions, parol evidence can be introduced to prove the illegality.

7. Collateral Agreements

Parol evidence may be admitted to prove the existence of separate, collateral agreements that do not conflict with or contradict the main written contract. These agreements must be independent and supported by separate consideration.


  • If the parties have a written contract for the sale of a car and a separate oral agreement for the seller to provide driving lessons, parol evidence of the driving lessons agreement can be introduced.

Understanding the Parol Evidence Rule and its exceptions is crucial for navigating contract disputes and ensuring that the true intentions of the parties are honored. While the rule aims to uphold the integrity of written agreements, the exceptions allow for flexibility in addressing issues of ambiguity, fraud, modification, and completeness, thereby ensuring fairness and justice in contractual relationships.

Third-Party Rights and Obligations

Assignment and Delegation


Assignment refers to the transfer of rights or benefits from one party (the assignor) to another party (the assignee) under a contract. When a right is assigned, the assignor’s interest in the contract is transferred to the assignee, who then becomes entitled to the benefits originally intended for the assignor.

Key Aspects of Assignment:

  • Assignor and Assignee: The assignor is the original party who transfers their rights, and the assignee is the party who receives the rights.
  • Notice: It is generally advisable for the assignee to notify the obligor (the party who owes performance) of the assignment to ensure the obligor performs their duties to the assignee.
  • Rights That Can Be Assigned: Most contractual rights can be assigned unless the contract specifically prohibits assignment or the assignment would materially alter the obligor’s duties or increase their burden.


  • A landlord assigns the right to receive rental payments to a third party (assignee). The tenant (obligor) must then pay rent to the assignee instead of the landlord.


Delegation involves the transfer of duties or obligations from one party (the delegator) to another party (the delegatee). While the delegatee agrees to perform the duties, the delegator remains ultimately responsible for ensuring the obligations are fulfilled.

Key Aspects of Delegation:

  • Delegator and Delegatee: The delegator transfers the duty, and the delegatee undertakes the responsibility to perform the duty.
  • Consent: Some duties may not be delegable if they involve personal skills or trust, or if the contract prohibits delegation.
  • Liability: The delegator remains liable for the performance of the contract, even after delegation. If the delegatee fails to perform, the delegator is still responsible.


  • A contractor delegates the duty to paint a house to a subcontractor (delegatee). If the subcontractor does not complete the job, the original contractor (delegator) remains liable to the homeowner.

Third-Party Beneficiaries

A third-party beneficiary is someone who, although not a direct party to the contract, stands to benefit from the contract’s performance. Third-party beneficiaries can be classified as intended or incidental.

Intended Beneficiaries

Intended beneficiaries are those whom the parties to the contract intended to benefit directly from the agreement. They have legal rights to enforce the contract if the promised performance is not delivered.

Key Aspects of Intended Beneficiaries:

  • Recognition in the Contract: The contract explicitly or implicitly recognizes the third party as a beneficiary.
  • Right to Enforce: Intended beneficiaries can sue to enforce the contract if the obligations are not fulfilled.


  • A life insurance policy names a specific individual (intended beneficiary) to receive the death benefit upon the policyholder’s death. The beneficiary has the right to enforce the terms of the policy.

Incidental Beneficiaries

Incidental beneficiaries are those who may benefit from the performance of a contract but are not the primary focus of the agreement. They do not have legal rights to enforce the contract, as the benefit they receive is incidental and not intended by the contracting parties.

Key Aspects of Incidental Beneficiaries:

  • No Recognition in the Contract: The contract does not specifically identify or intend to benefit the incidental beneficiary.
  • No Right to Enforce: Incidental beneficiaries cannot enforce the contract or claim damages if the contract is breached.


  • A city contracts with a construction company to build a public park. Nearby homeowners may benefit from the increased property values due to the new park, but they are incidental beneficiaries and cannot enforce the construction contract.

Understanding third-party rights and obligations in contracts is crucial for comprehensively managing contractual relationships. Assignment and delegation allow parties to transfer their rights and duties, while the recognition of third-party beneficiaries ensures that intended beneficiaries can enforce their rights under the contract. These concepts help ensure that all parties, including those indirectly involved, understand their roles and protections within the contractual framework.

Breach of Contract and Remedies

Definition of Breach of Contract

A breach of contract occurs when one party fails to fulfill their obligations under the terms of the agreement. This failure can take various forms, such as not performing on time, performing inadequately, or not performing at all. When a breach occurs, the non-breaching party is entitled to seek remedies to address the harm caused by the breach.

Key Elements of Breach of Contract:

  • Existence of a Valid Contract: There must be a valid, enforceable contract in place.
  • Failure to Perform: One party must have failed to perform their contractual obligations.
  • Damages: The non-breaching party must have suffered damages as a result of the breach.

Types of Breaches

Minor Breach

A minor breach, also known as a partial or immaterial breach, occurs when the breaching party fails to perform a small part of their obligations, but the main purpose of the contract is still fulfilled. In such cases, the non-breaching party can seek damages but is typically required to continue performing their part of the contract.


  • A contractor completes a construction project but uses slightly different materials than specified. The main purpose of the contract is achieved, and the homeowner can claim damages for the difference in material cost.

Material Breach

A material breach is a significant failure to perform that undermines the very essence of the contract. This type of breach allows the non-breaching party to terminate the contract and seek damages for the entire value of the agreement.


  • A software developer fails to deliver a custom software program by the agreed deadline, rendering the product useless for the intended business launch. The breach is material, allowing the client to terminate the contract and seek damages.

Remedies for Breach

When a breach of contract occurs, several remedies are available to the non-breaching party to address the harm caused and to seek appropriate compensation.


Compensatory Damages:

  • These damages aim to compensate the non-breaching party for the actual loss incurred due to the breach. The goal is to put the non-breaching party in the position they would have been in had the breach not occurred.


  • If a supplier fails to deliver goods, the buyer can claim the cost difference between the contract price and the price of obtaining the goods from another supplier.

Consequential Damages:

  • Also known as special damages, these are additional damages that result from the breach’s specific circumstances and were foreseeable at the time of contracting.


  • If the failure to deliver goods causes the buyer to lose a lucrative contract with a third party, the buyer may claim the lost profits as consequential damages.

Punitive Damages:

  • Punitive damages are awarded to punish the breaching party for particularly egregious conduct and to deter similar behavior in the future. They are rare in contract cases and usually require evidence of fraud, malice, or willful misconduct.


  • If a contractor intentionally uses substandard materials despite knowing the potential harm, the court may award punitive damages.

Specific Performance

Specific performance is an equitable remedy that compels the breaching party to fulfill their obligations under the contract. This remedy is typically used when monetary damages are inadequate, and the subject matter of the contract is unique or irreplaceable.


  • In a contract for the sale of a rare piece of art, the court may order the seller to deliver the artwork to the buyer, as monetary compensation would not suffice.


Rescission is the cancellation of a contract, returning the parties to their pre-contractual positions. This remedy is appropriate when the breach is so fundamental that it undermines the entire agreement.


  • If a buyer discovers that a seller has committed fraud in the sale of a property, the buyer can seek rescission to void the contract and recover any payments made.


Restitution aims to restore the non-breaching party to the position they were in before the contract was formed. This remedy involves returning any benefits or payments exchanged under the contract to prevent unjust enrichment of the breaching party.


  • If a service provider fails to perform the agreed services, the client can seek restitution to recover any advance payments made.

Understanding the types of breaches and available remedies is crucial for effectively managing contract disputes. By recognizing the nature of the breach and selecting the appropriate remedy, parties can address the harm caused and seek fair compensation, ensuring the integrity and enforceability of contractual agreements.


Summary of Key Points

In this article, we have explored the fundamental aspects of contract formation, a critical area of study for those preparing for the REG CPA exam. We began with an understanding of the essential elements that constitute a valid contract:

  • Offer: A clear and definite proposal that expresses the offeror’s intent to be bound by specific terms.
  • Acceptance: An unequivocal agreement by the offeree to the terms of the offer, adhering to the mirror image and mailbox rules.
  • Consideration: The value exchanged between the parties, ensuring that each party brings something of legal value to the agreement.
  • Mutual Assent: A meeting of the minds where both parties have a mutual understanding and agreement on the contract’s terms, evaluated through the objective theory of contracts.
  • Legality: The requirement that the contract’s purpose and subject matter must be legal and not contrary to public policy.
  • Capacity to Contract: Ensuring that all parties have the legal ability to enter into a binding agreement, considering factors like age, mental state, and intoxication.

We also examined the Statute of Frauds, highlighting the necessity of written contracts for certain types of agreements, and the Parol Evidence Rule, which limits the use of extrinsic evidence to alter or contradict a written contract.

Further, we delved into third-party rights and obligations, discussing the roles of assignment and delegation, and distinguishing between intended and incidental third-party beneficiaries. Lastly, we covered the concepts of breach of contract and the available remedies, including damages, specific performance, rescission, and restitution.

Importance of Understanding Contract Formation for the REG CPA Exam

For CPA candidates, particularly those studying for the REG section of the CPA exam, mastering the principles of contract formation is crucial. This knowledge not only prepares candidates for exam questions related to business law but also equips them with practical skills necessary for professional practice.

Understanding contract formation enables CPA candidates to:

  • Navigate Legal Frameworks: Recognize and interpret the legal requirements and elements that make contracts valid and enforceable.
  • Advise Clients Effectively: Provide sound advice to clients on contractual matters, helping them avoid legal pitfalls and protect their interests.
  • Ensure Compliance: Ensure that contracts comply with relevant laws and regulations, thereby safeguarding clients from potential disputes and legal issues.
  • Resolve Disputes: Identify breaches and understand the appropriate remedies, facilitating effective resolution of contract disputes.

By thoroughly understanding the concepts of contract formation, CPA candidates can enhance their legal acumen, improve their advisory capabilities, and contribute to the successful and lawful conduct of business transactions. This comprehensive knowledge is indispensable for achieving success in the REG CPA exam and excelling in a professional accounting career.

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