Was an offer to settle made to me by an attorney with a witness legally binding once I accepted?
Full Question:
Answer:
The required elements that must be established to demonstrate the formation of a legally binding contract are
(1) offer;
(2) acceptance;
(3) consideration;
(4) mutuality of obligation;
(5) competency and capacity; and, in certain circumstances,
(6) a written instrument.
The rejection of an offer terminates the offeree's power of acceptance and ends the offeror's liability for the offer. Rejection might come in the form of an express refusal to accept the offer or by implication when the offeree makes a counteroffer that is materially different from the offeror's original proposal. Most jurisdictions also recognize an offeror's right to withdraw or revoke an offer as a legitimate means of terminating the offer.
Acceptance of an offer is the expression of assent to its terms. Acceptance must generally be made in the manner specified by the offer. If no manner of acceptance is specified by the offer, then acceptance may be made in a manner that is reasonable under the circumstances. An acceptance is only valid, however, if the offeree knows of the offer, the offeree manifests an intention to accept, and the acceptance is expressed as an unequivocal and unconditional agreement to the terms of the offer.
Many offers specify the method of acceptance, whether it be oral or written, by phone or in person, by handshake or by ceremony. Other offers leave open the method of acceptance, allowing the offeree to accept in a reasonable manner. Most consumer transactions fall into this category, as when a shopper "accepts" a merchant's offer by taking possession of a particular good and paying for it at the cash register. But what constitutes a "reasonable" acceptance will vary according to the contract.
Each party to a contract must provide something of value that induces the other to enter the agreement. The law calls this exchange of values "consideration." The value exchanged need not consist of currency. Instead, it may consist of a promise to perform an act that one is not legally required to do or a promise to refrain from an act that one is legally entitled to do. For example, if a rich uncle promises to give his nephew a new sports car if he refrains from smoking cigarettes and drinking alcohol for five years, the law deems both the uncle's promise and the nephew's forbearance lawful consideration.
A court's analysis as to whether a contract is supported by sufficient consideration typically focuses more on the promise or performance of the offeree than the promise or performance of the offeror. Courts often say that no consideration will be found unless the offeree suffers a "legal detriment" in making the return promise or in performing the act requested by the offeror. As a general rule, legal detriment is found if the offeree relinquishes a legal right in fulfilling his or her contractual duties. Thus, promises to give love and affection or make a gift or donation are not sufficient consideration to support a contract because no one is under a legal duty to give or refrain from giving these things to others. Similarly a promise to perform an act that has already been completed in the past fails to offer consideration to support a new agreement.
Not every contract need be in writing to be valid and binding on both parties. But nearly every state legislature has enacted a body of law that identifies certain types of contracts that must be in writing to be enforceable. In legal parlance this body of law is called the statute of frauds.
Named after a seventeenth-century English statute, the statute of frauds is designed to prevent a plaintiff from bringing an action for breach of contract based on a nonexistent agreement for which the only proof of the agreement is the plaintiff's perjured testimony. The statue of frauds attempts to accomplish this objective by prohibiting the enforcement of particular contracts, unless the terms of the contract are expressly reflected by written note, memorandum, or agreement that is signed by the parties or their personal representatives.
The following is a NH statute:
506:1 Sale of Land.
No action shall be maintained upon a contract for the sale of land
unless the agreement upon which it is brought, or some memorandum
thereof, is in writing and signed by the party to be charged, or by some
person authorized by him in writing.
