A. Introduction

• Author: John D. McCamus
• Profession: Professor of Law. Osgoode Hall Law School, York University
• Pages: 31-33

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The analytical framework for determining whether or not the parties have in fact reached a mutual understanding on the terms of their agreement is referred to as the law of offer and acceptance. The basic idea running through the law of offer and acceptance is that the parties will be held to have reached an agreement when they have formed a mutual intention to enter into a bargain with each other and, further, are in agreement as to the terms of that bargain. It is only then that the parties have reached a true "consensus ad idem" or "meeting of the minds," which, in theory at least, is an indispensable requirement for the formation of an agreement. In the calculus of offer and acceptance, the communications of the parties must have created an "offer" that sets out the offeror’s willingness to enter into an agreement on certain terms; this is then matched with a corresponding agreement or "acceptance" forthcoming from the other party, the offeree, which also communicates a willingness to enter into an agreement on the proffered terms. The acceptance must precisely match the terms of the offer, a proposition often referred to as "the mirror image rule." A purported acceptance that indicates different terms cannot create the required consensus. Under the orthodox analysis, the offeree must intend to accept the of-

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fer.¹Thus, the fact that two parties send out...