"Mutual assent" to set terms"Consideration"Proper form (written v. oral)Lawful purpose"Mutual Assent" to Set TermsThe agreement must be based upon a mutual exchange of promises, made freely, by competent parties. Mutual assent is often achieved by one party making an offer and the other party making an acceptance of that offer. If the accepting party offers to accept something different, a counter-offer is created, to which the original offering party can then accept to create an agreement. The key is that both parties agree to the same, settled terms.In some circumstances, a court might infer mutual assent from the parties' behavior. The absence of settled terms may not render a contract unenforceable if a party can show the contract was governed by a custom existing between the parties, or an industry-wide practice.Problems with mutual assent can, however, excuse a party from the obligations of a contract. A contract made under duress is not enforceable. Additionally, contracts made with individuals unable to exercise free will are void. A contract with a party under age eighteen is not enforceable against the minor. An agreement based upon a mutual mistake by the parties is also not enforceable."Consideration"Mere promises are not enforceable. Only promises supported by "consideration" are enforceable. Consideration is present if the parties agree to confer a benefit, or to suffer a detriment, that would not occur absent the agreement. Gifts are not enforceable under contract law because the gratification of giving alone is not valid consideration. However, any amount of consideration of value, even a penny, is sufficient.Proper Form (Written V. Oral)Certain types of agreements must be in writing in order to be enforceable. The subject of the contract usually determines whether a "statute of frauds" requires the agreement to be in writing. The "statute of frauds" is a law that applies to certain transactions in order to avoid false claims that a contract existed. For example, contracts involving the sale of land must be in writing. Oral agreements to buy or sell land are not enforceable.Lawful PurposeAgreements to perform an illegal act are not enforceable. For example, a court would not enforce an agreement to commit a murder for money.