Common Law Contracts: A Guide to Understanding Essential Elements

Discover which are the essential elements to a common law contract. Learn about offer, acceptance, consideration, and more in this comprehensive guide.

Why Understanding Essential Elements is Important

When it comes to understanding which are the essential elements to a common law contract, it boils down to six key factors:

  1. Offer: A clear proposal from one party to another.
  2. Acceptance: Unconditional agreement to the terms of the offer.
  3. Consideration: Something of value exchanged by both parties.
  4. Intention: Both parties must intend to create a binding agreement.
  5. Capacity: Parties must have the legal ability to enter into the contract.
  6. Legality: The contract’s purpose must comply with the law.

Contracts are the foundation of many professional relationships. They define the obligations, rights, and duties of everyone involved. Whether you’re hiring someone, signing a lease, or making a business deal, knowing these elements can ensure your agreement is enforceable.

I’m M. Denzell Moton, Esq., a South Carolina native with a J.D. from Cumberland School of Law. I’ve handled thousands of cases, specializing in personal injury and business litigation. Understanding the essential elements of a common law contract is crucial for navigating legal challenges and achieving favorable outcomes.

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What are the Essential Elements to a Common Law Contract?


An offer is the starting point of any contract. It’s a clear proposal by one party (the offeror) to another (the offeree). For example, if someone says, “I’ll sell you my car for $500,” that’s an offer. The offer must be specific and communicated to the other party.

Communication is key. The offer has to be received by the offeree to be valid. If you send an offer via email, it’s not valid until the offeree actually receives and reads it.

In some cases, what looks like an offer might actually be an invitation to treat. This is not a binding offer but an invitation to negotiate. For instance, a store displaying a watch for $1 is not making an offer but inviting customers to make an offer to buy it.


Acceptance is when the offeree agrees to the terms of the offer. This agreement must be unconditional and correspond exactly to the terms of the offer. If someone offers to sell you a car for $500, saying “I’ll take it for $450” is not acceptance—it’s a counteroffer.

Acceptance can be express (clearly stated) or implied (shown through actions). For example, nodding your head or shaking hands can imply acceptance.

Communication is also crucial here. Silence does not mean acceptance. Both parties must clearly understand and agree to the terms.


Consideration is what each party brings to the table. It’s the value exchanged between the parties. This could be money, services, or goods. For a contract to be valid, there must be a value exchange.

Even something as small as a peppercorn can be valid consideration—this is known as the Peppercorn Rule. The idea is that the courts don’t judge the adequacy of consideration, just its presence.

Non-compete agreements are a good example of consideration. In return for not competing with an employer, the employee might receive compensation or other benefits.

Intention to Create Legal Relations

For a contract to be enforceable, both parties must have the intention to create legal relations. This means they must intend for their agreement to be legally binding.

Formal language and the inclusion of an entire agreement clause can help show this intention. Conduct can also infer intention; if both parties act as though they are bound by the contract, this can be evidence of their intent.

Authority and Capacity

Authority and capacity ensure that all parties have the legal ability to enter into the contract.

Legal age is a factor—usually, parties must be 18 or older. Mental capacity is another important aspect; parties must understand the terms and consequences of the contract.

For example, minors or individuals under the influence of drugs may not have the capacity to enter into a contract. All parties must fully understand what they’re agreeing to.


The contract must be for a legal purpose. Contracts involving illegal activities are not enforceable.

Law compliance is essential. The contract must comply with all relevant laws and regulations. For instance, a contract to sell illegal drugs is void and unenforceable.

Enforceability also depends on the contract not violating public policy. Contracts that do so will not be upheld by courts.

Understanding these essential elements—offer, acceptance, consideration, intention to create legal relations, authority and capacity, and legality—ensures that your contract is legally binding and enforceable.

How Common Law Contracts Differ from Other Legal Systems

Common Law vs. Civil Law

When comparing common law and civil law systems, it’s like comparing apples and oranges. They both aim to resolve disputes and enforce agreements, but they do so in different ways.

Precedents play a huge role in common law. Judges make decisions based on previous cases, known as stare decisis. This means that if a similar case has been decided before, the judge will likely follow that decision. This creates consistency and predictability in the law.

In contrast, civil law relies on codification. Laws are written down in comprehensive codes. Judges look at these codes to make decisions, rather than relying on past cases. This system can be more rigid but aims to be straightforward and clear.

The judicial role also differs. In common law systems, judges interpret and apply the law, often creating new legal principles through their rulings. In civil law systems, judges primarily apply the codified laws and have less room for interpretation.

Impact of Statute of Frauds on Contracts

The Statute of Frauds is a legal concept that requires certain contracts to be in writing to be enforceable. This helps prevent fraud and misunderstandings by providing clear evidence of the agreement.

Written requirements under the Statute of Frauds typically include:

  • Contracts for the sale of land
  • Agreements that cannot be performed within one year
  • Contracts for the sale of goods over a certain value (usually $500)
  • Promises to pay someone else’s debt

These types of contracts must be in writing and signed by the parties involved.

There are legal exceptions to the Statute of Frauds. For example, if one party has already performed their part of the agreement, or if there has been significant reliance on the agreement, courts may enforce an oral contract under the doctrine of promissory estoppel.

In summary, while common law relies heavily on precedents and unwritten laws, civil law depends on codification. The Statute of Frauds ensures that certain contracts are in writing to provide clear evidence and prevent disputes.

Next, we’ll explore how key differences in contract elements vary under different jurisdictions like the UCC, Restatement of Law, and international regulations.

Key Differences in Contract Elements Under Various Jurisdictions

When it comes to contracts, understanding the differences in how they are governed across various jurisdictions is crucial. Let’s dive into three key frameworks: the Uniform Commercial Code (UCC), the Restatement of Law, Second Contracts, and International Regulations.

Uniform Commercial Code (UCC)

The UCC is a set of laws that standardizes commercial transactions in the United States. It is especially relevant for sales and secured transactions.

  • Sales: Article 2 of the UCC deals with the sale of goods. It provides flexibility in terms and conditions, making it easier for merchants to conduct business. For instance, under the UCC, a contract can be formed even if some terms are left open, as long as the parties intend to make a contract and there is a reasonably certain basis for giving an appropriate remedy.

  • Secured Transactions: Article 9 covers secured transactions, where a security interest is taken in personal property as collateral. This is crucial for loans and financing.

  • General Provisions: Article 1 lays down the definitions and general principles that apply to the entire UCC. This includes the concept of “good faith” in commercial transactions.

Restatement of Law, Second Contracts

The Restatement is a legal treatise that aims to distill the common law principles of contracts into a coherent framework. It is not law but highly persuasive in courts.

  • Bargain Theory: This theory emphasizes that a contract is a bargain for mutual consideration. Both parties must exchange something of value.

  • Benefit-Detriment Theory: This theory focuses on whether one party benefits and the other suffers a detriment. For example, if you sell your car, you get money (benefit), and the buyer loses money but gains the car (detriment).

  • Mutual Assent: Both parties must agree to the same terms, often summarized as a “meeting of the minds.” This is crucial for a contract to be valid.

International Regulations

For contracts that cross borders, the United Nations Convention on Contracts for the International Sale of Goods (CISG) comes into play.

  • UN Convention: The CISG governs international sales contracts. It aims to provide a uniform framework to reduce the complexities of cross-border trade. The U.S. is a signatory, making the CISG applicable to many international contracts involving U.S. parties.

  • Cross-Border Contracts: These contracts often involve different legal systems, making it essential to specify which jurisdiction’s laws will govern the contract. The CISG helps by providing a set of rules that are recognized internationally.

  • Legal Adaptations: Different countries have their own adaptations and interpretations of international laws. It’s crucial to consult legal experts familiar with the specific jurisdictions involved.

Understanding these frameworks can help you navigate the complexities of contracts, whether you’re dealing with local transactions or international agreements. Next, we’ll debunk some common misconceptions and legal myths about contracts.

Common Misconceptions and Legal Myths about Contracts

The Myth of Written Contracts

Myth: “If it’s not written down, it’s not a contract.”

Reality: Both oral and written contracts can be legally binding. The key is that all the basic elements of a contract (offer, acceptance, consideration, and legality) must be present. However, written contracts are easier to prove in court.

Let’s break this down with an example. Imagine you tell your friend you’ll pay them back if they buy you lunch. That’s an oral contract. No paper needed, just your word. But if a dispute arises, proving the terms of this agreement can be tricky.

Limitations: While oral contracts are valid, they come with limitations. Certain types of contracts, like those involving real estate or agreements that cannot be performed within one year, must be in writing to be enforceable. This requirement is part of the Statute of Frauds.


  • Valid Oral Contract: You agree with a neighbor to mow their lawn for $50. Both parties understand the terms, making it enforceable.
  • Invalid Oral Contract: You agree to sell your house to a friend verbally. This agreement must be in writing to be legally binding.

Signature Misconceptions

Myth: “A contract needs a handwritten signature to be valid.”

Reality: Digital signatures and even implied consent can make a contract legally valid. Modern technology has broadened what counts as a signature. For example, clicking “I agree” on online terms and conditions can bind you just like a handwritten signature.

Case Study: Lucy v. Zehmer

In the famous case of Lucy v. Zehmer, the court ruled that a handwritten agreement on a restaurant check, made in jest, was a valid contract. This case illustrates that the context and intention behind signing an agreement matter more than the form it takes.


  • Digital Signatures: Signing a contract via DocuSign is legally binding.
  • Implied Consent: Accepting a service and paying for it implies you agreed to the contract terms.

Misunderstandings about Contract Legality

Myth: “If a contract includes illegal terms, the whole contract is void.”

Reality: Only the illegal parts of a contract are void, not necessarily the entire contract. Courts often sever the illegal terms and enforce the rest of the agreement.

Illegal Terms, Void and Voidable Contracts

  • Illegal Terms: If a contract includes terms that violate the law, those specific terms are unenforceable. For example, a non-compete clause that is too broad and restricts fair competition might be struck down.
  • Void Contracts: These are contracts that are not valid from the start, like agreements to commit illegal acts.
  • Voidable Contracts: These can be invalidated by one party, such as contracts signed under duress or by minors.


Courts aim to enforce contracts in a way that reflects the parties’ original intentions, minus any illegal terms. This ensures fairness and upholds the rule of law.

Understanding these misconceptions can save you from a lot of headaches down the road. Contracts, whether oral, written, or implied, are a part of daily life. Knowing the basics helps you navigate these waters with confidence.

Next, let’s explore some frequently asked questions about common law contracts to clear up any lingering confusion.

Frequently Asked Questions about Common Law Contracts

What makes a contract legally binding?

For a contract to be legally binding under common law, it must include six essential elements:

  1. Offer: A clear and definite proposal by one party (the offeror) to another (the offeree).
  2. Acceptance: The offeree’s unconditional agreement to the offer’s terms.
  3. Consideration: Something of value exchanged between the parties.
  4. Intention to Create Legal Relations: Both parties must intend for the contract to be legally enforceable.
  5. Authority and Capacity: Parties must have the legal ability to enter into a contract.
  6. Legality: The contract’s purpose must comply with the law.

Without these elements, a contract may be void or unenforceable.

Can a verbal agreement be legally enforced?

Short answer: Yes.

Longer answer: While written contracts are easier to prove, verbal agreements can also be legally binding if they include the essential elements mentioned above. However, certain types of contracts, like those for the sale of real estate or agreements that cannot be performed within a year, often must be in writing to be enforceable due to the Statute of Frauds.

Example: In the famous case of Lucy v. Zehmer, a verbal agreement made in a bar was deemed legally binding because it met all the essential elements of a contract.

What are the consequences of a breach in a common law contract?

When one party fails to fulfill their contractual obligations, it constitutes a breach of contract. The non-breaching party may have several legal remedies available:

  • Damages: Financial compensation for losses incurred due to the breach.
  • Specific Performance: A court order requiring the breaching party to fulfill their contractual obligations.
  • Rescission: Cancellation of the contract, with both parties returning any benefits received.
  • Reformation: Modification of the contract terms to reflect the parties’ original intentions.

Understanding these remedies can help you know what to expect if a contract is breached.

Next, we’ll delve into how common law contracts differ from other legal systems, shedding light on the role of precedents and the impact of the Statute of Frauds.


In summary, understanding the essential elements of a common law contract—offer, acceptance, consideration, intention to create legal relations, capacity, and legality—is crucial for forming legally binding agreements. Each element ensures that all parties are clear on their rights and obligations, reducing the risk of disputes and misunderstandings.

Legal advice is invaluable when drafting, reviewing, or negotiating contracts. A seasoned lawyer can help identify potential issues, ensure compliance with legal standards, and tailor the contract to your specific needs, ultimately saving you from costly mistakes and legal battles.

At Moton Legal Group, we specialize in contract law, offering expert guidance and support to help you navigate the complexities of common law contracts. Whether you need assistance with drafting, reviewing, or resolving disputes, our experienced team is here to ensure your agreements serve your best interests and pave the way for your success.

Don’t leave your agreements to chance. Reach out to us today and let us help you build strong, lasting business relationships through effective contracts.

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