§ 2.01 Mutual Assent

Contract formation requires mutual assent to the same terms by the parties, generally manifested by an offer and acceptance (see chapters 3 and 4). Current law favors an objective standard for determining a party's intent to be contractually bound. Thus, in general, communications are given the meaning that the recipient of the communication should have reasonably understood. Nevertheless subjective intent is relevant in determining whether the parties intended to be bound. Without such subjective intent, there is no contract.

§ 2.02 Basis for Remedy

A validly formed contract must provide a basis for determining the existence of a breach and for giving an appropriate remedy [Restatement § 33; UCC § 2-204]. Non-goods contracts, according to the Restatement, must include terms that are sufficiently definite and certain; goods contracts, on the other hand, do "not fail for indefiniteness even if one or more terms are left open if the parties intended to make a contract and there is a reasonably certain basis for giving an appropriate remedy."

§ 2.03 Contract Formation by Electronic Agents

Proposed new UCC § 2-204(4) recognizes the legal effect of contract formed by electronic agents resulting from:

(1) the interaction of electronic agents of the parties, even in the absence of direct participation in such contract by the parties (i.e., the programming of such electronic agents suffices)

(2) the interaction of an individual with an electronic agent, e.g., a website, where the individual has the option of refusing or taking action or makes a statement that the individual has reason to know will:

(a) cause the electronic agent to complete the transaction; or

(b) indicate acceptance of an offer, regardless of other expressions or actions by the individual to which the electronic agent cannot react.

§ 2.04 Receipt of Electronic Communications

A number of communications relevant to contract formation – such as an offer, revocation of offer, or rejection of offer – are effective upon receipt by the person for whom the communication is intended. In contracts for the sale of goods, any legally effective communication sent by electronic means has effect upon receipt by the intended recipient's electronic system, e.g., e-mailbox, even if he is unaware of such receipt. [proposed new UCC § 2-213]