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Chapter 10 Real Assent

Learning Objectives

After reading this chapter, you should understand the following:

  1. Contracts require “a meeting of the minds” between competent parties, and if there is no such “meeting,” the agreement is usually voidable.
  2. Parties must enter the contract voluntarily, without duress or undue influence.
  3. Misrepresentation or fraud, when proven, vitiates a contract.
  4. A mistake may make a contract voidable.
  5. Parties to a contract must have capacity—that is, not labor under infancy, intoxication, or insanity.

We turn to the second of the four requirements for a valid contract. In addition to manifestation of assent, a party’s assent must be real; he or she must consent to the contract freely, with adequate knowledge, and must have capacity. The requirement of real assent raises the following major questions:

  1. Did the parties enter into the contract of their own free will, or was one forced to agree under duress or undue influence?
  2. Did the parties enter into the contract with full knowledge of the facts, or was one or both led to the agreement through fraud or mistake?
  3. Did both parties have the capacity to make a contract?