LAW CLINIC: CONTRACTUAL AGREEMENT AND DISPUTE with LANSANA KOTOR KAMARA ESQ.

Wusu Dumbuya Jr.

Sensi Tech Hub is always excited to host amazing events and speakers and November 10, 2017 was no exception when Attorney Lansana Kotor Kamara was given the stage to educate us on contractual agreement and dispute. Mr. Kamara spoke extensively about the struggles and mistakes business people go through in order to achieve success in and out of the courtroom. As always it is Sensi’s mission to continue to inform and train entrepreneurs young and old by providing exclusive content, lectures, speakers, programs and everything in between.

Posted by Sensi Tech Hub Freetown on Friday, November 10, 2017

Here are the topics covered:

What is a Contractual Agreement?

A contract is a voluntary arrangement between two or more parties that is enforceable by law as a binding legal agreement. Contract is a branch of the law of obligations in jurisdictions of the civil law tradition. Contract law concerns the rights and duties that arise from agreements.[1]

A contract arises when the parties agree that there is an agreement. Formation of a contract generally requires an offer, acceptanceconsideration, and a mutual intent to be bound. Each party to a contract must have capacity to enter the agreement. Minors, intoxicated persons, and those under a mental affliction may have insufficient capacity to enter a contract. Some types of contracts may require formalities, such as a memorialization in writing.

At common law, the elements of a contract are offer, acceptance, intention to create legal relations, and consideration.

Not all agreements are necessarily contractual, as the parties generally must be deemed to have an intention to be legally bound. A so-called gentlemen’s agreement is one which is not intended to be legally enforceable, and which is “binding in honour only”.[2]

 

Offer and acceptance

In order for a contract to be formed, the parties must reach mutual assent (also called a meeting of the minds). This is typically reached through offer and an acceptance which does not vary the offer’s terms, which is known as the “mirror image rule“. An offer is a definite statement of the offeror’s willingness to be bound should certain conditions be met.[3] If a purported acceptance does vary the terms of an offer, it is not an acceptance but a counteroffer and, therefore, simultaneously a rejection of the original offer. The Uniform Commercial Code disposes of the mirror image rule in §2-207, although the UCC only governs transactions in goods in the USA. As a court cannot read minds, the intent of the parties is interpreted objectively from the perspective of a reasonable person,[4] as determined in the early English case of Smith v Hughes [1871]. It is important to note that where an offer specifies a particular mode of acceptance, only an acceptance communicated via that method will be valid.[5]

Contracts may be bilateral or unilateral. A bilateral contract is an agreement in which each of the parties to the contract makes a promise[6] or set of promises to each other. For example, in a contract for the sale of a home, the buyer promises to pay the seller $200,000 in exchange for the seller’s promise to deliver title to the property. These common contracts take place in the daily flow of commerce transactions, and in cases with sophisticated or expensive precedent requirements, which are requirements that must be met for the contract to be fulfilled.

 

Consideration

Consideration is a concept devised by English common law, and is required for simple contracts, but not for special contracts (contracts by deed). The case of Currie v Misa[13]declared consideration to be a “Right, Interest, Profit, Benefit, or Forbearance, Detriment, Loss, Responsibility”. Thus, consideration is a promise of something of value given by a promissor in exchange for something of value given by a promisee; and typically the thing of value is goods, money, or an act. Forbearance to act, such as an adult promising to refrain from smoking, is enforceable only if one is thereby surrendering a legal right.

 

Capacity

Sometimes the capacity of either natural or artificial persons to either enforce contracts, or have contracts enforced against them is restricted. For instance, very small children may not be held to bargains they have made, on the assumption that they lack the maturity to understand what they are doing; errant employees or directors may be prevented from contracting for their company, because they have acted ultra vires (beyond their power). Another example might be people who are mentally incapacitated, either by disability or drunkenness.[28]

Each contractual party must be a “competent person” having legal capacity. The parties may be natural persons (“individuals”) or juristic persons (“corporations“). An agreement is formed when an “offer” is accepted. The parties must have an intention to be legally bound; and to be valid, the agreement must have both proper “form” and a lawful object. In England (and in jurisdictions using English contract principles), the parties must also exchange “consideration” to create a “mutuality of obligation,” as in Simpkins v Pays.[29]

In the United States, persons under 18 are typically minor and their contracts are considered voidable; however, if the minor voids the contract, benefits received by the minor must be returned. The minor can enforce breaches of contract by an adult while the adult’s enforcement may be more limited under the bargain principle.

 

Due to time constraints we decided to extend an invitation to Mr. Kamara to return and continue this discussion on contractual agreements and disputes. He also can be reached at the Fast Track Commercial Court in Freetown, Sierra Leone.

Please keep in mind additional research was done for this research (Wikipedia.com, Google.com) for accuracy, quality and preciseness of legal terms and concepts.

 

Wusu Dumbuya Jr.

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