A. Overview

Author:John D. McCamus
Profession:Professor of Law. Osgoode Hall Law School, York University

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The term "contract" is often used in common parlance to refer to a written document that records an enforceable agreement between two parties. Although lawyers do often use the term in this fashion, the term is used in a more general way in legal discourse as a reference to any enforceable promise. This broader usage is necessitated by the fact - surprising to some who are new to the subject - that oral promises may be enforceable in certain circumstances, notwithstanding the fact that they are not recorded in written form.1As a general matter, promises, whether oral or written, are enforceable if they are included within a "bargain" between two parties. The term "bargain" does not capture the entire subject matter of contract law, however, because it is also possible for unilateral or one-sided promises to be enforceable if they are recorded in writing in a particular formalized fashion.2The term "promise" signals that the subject of our attention consists of enforceable commitments with respect to the future. A purely contemporaneous exchange or barter of goods in which neither party gives an undertaking of any kind with respect to the subject matter of the exchange does not include a potentially enforceable promise and is

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therefore not a contract in the requisite sense. Further, statements of present fact do not constitute promises though, as we shall see,3the distinction between representations or statements of fact, on the one hand, and promises, on the other, is both difficult to draw and highly manipulable. This is not to say that a false statement of current fact is of no legal interest.4It is merely to say that a statement of current fact is not a promise in the requisite sense. As a legal term of art, "contracts" refers to the universe of legally enforceable promises. The law of contracts, then, is the law relating to the enforcement of promises.

1) The Plan of This Work

A brief survey of the content of the law of contracts may be accomplished by outlining the plan of this work. This volume is subdivided into six parts dealing, in turn, with (1) the formation of agreements, (2) the rules for recognizing their enforceability at law, (3) grounds for setting aside or vitiating agreements that would otherwise be enforceable, (4) performance and breach of contracts, (5) principles of interpretation of agreements and (6) the remedies available for breach of contract.

A threshold question for the law of contracts is to determine whether the parties have reached agreement on the particulars of the promises that are sought to be enforced. A variety of issues relating to the formation of contracts are examined in Part One of this volume. The basic rules for determining whether the parties have reached an agreement on certain terms - the rules of "offer and acceptance" - are examined in Chapter 2. Even though the parties may have reached a genuine agreement or consensus ad idem on certain matters, the terms of their agreement, if it is to be enforceable, must deal with sufficient matters to constitute a valid agreement. Otherwise, the agreement will fail for incompleteness or uncertainty. This issue is considered in Chapter 3. Further, even though the parties reach consensus on sufficient matters to constitute a valid agreement, it may not have been their intention to create an enforceable agreement. The relevancy of such an intent is explored in Chapter 4. In recent years, some courts have suggested the possibility that parties negotiating toward an agreement may be subject to a duty to bargain in good faith. The possible content of such a duty and the current status of any such doctrine are examined in Chapter

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5. Part One concludes in Chapter 6 with an examination of various issues concerning the formation of agreements in writing. First, the nature and effect of various statutory requirements that certain types of agreements be recorded in signed writing are examined. Second, the problem of determining whether written terms included in a document - an airline ticket, for example - that one party intends will form the basis of the agreement between the parties should be considered to be binding upon the other party. Third, consideration is given to the problem that arises where a particular written document may appear to constitute the agreement between the parties but one of the parties wishes to rely on an undertaking given either orally or in another document by the other party. The so-called parol evidence rule holds that, as a general proposition, evidence of undertakings not recorded in a document intended to be the full expression of the agreement between the parties is inadmissible.

In Part Two, we consider the question of whether the promises given by one or both parties are the kinds of promises that the law should consider to be enforceable. This is evidently an issue of central importance for the law of contracts. As we shall see, there are essentially two "rules of recognition" for identifying enforceable promises and distinguishing them from promises that do not attract the enforcement mechanisms of the law. The first rule is the venerable doctrine of consideration, which holds that a promise as contained in a bargain or exchange between the parties is enforceable. The second...

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