The Birth of a Contract

The construction industry is driven, to a large degree, by contracts (just consider the name "contractor"). The AIA has its standard forms, and many companies have their own models that they prefer to use. But when is a contract formally created? Does it happen with a handshake? What about when forms get faxed back and forth, with each new round creating new modifications to the terms?

Generally speaking, a valid contract is formed when an offer is made, it is accepted, and there is a meeting of the minds. There is no acceptance when there is an attempt to change or qualify the terms of the offer. If there is such an attempt, the offer is rejected. A purported acceptance that adds conditions not contained in the offer is not actually an acceptance–it is a rejection of the offer. Additionally, a qualified or conditional response to an offer does not create a contract because there is no meeting of the minds. This is actually a counter-offer.

A counter-offer must be accepted by the party who made the original offer to constitute a contract. An acceptance takes effect only when the acceptance is communicated to the offeror. When an offeror/counter-offeror does not specify the manner of acceptance, the offeror impliedly authorizes acceptance by the same manner used to present the offer.

Meeting of the minds, or mutual assent, is the essence of a contract, and it is judged objectively on the basis of what the parties actually said and did.

"OK, that sounds like a bunch of legalese," you say, "and I’m still not sure when a contract is formed when I’m going back and forth with the owner/general/sub."

The Texas Supreme Court has provided some guidance, and the case of Capital Bank v. American Eyewear is instructive. That case involved a question of whether a lease was valid and contained an acceptance of an offer. The plaintiff, American Eyewear, prepared a proposed lease and submitted it to the Bank. The Bank’s president then made several changes in the document, signed and delivered it. An officer of American Eyewear then, in turn, initialed the changes made by the Bank’s president, but made three additional changes before signing the document. The court held that when American Eyewear made changes in the lease form executed by the Bank and sent it back to the Bank, that action acted as a counter offer, which was not binding on the Bank without the Bank’s acceptance of the counter offer.

These are some basic guidelines, but the actual formation of a contract is a very fact driven analysis. There will, however, always be three elements: 1) offer, 2) acceptance, and 3) a meeting of the minds.

Examining whether a formal, binding contract is formed may seem like a rudimentary question, but it is actually very important–particularly if there have been back-and-forth changes to forms. If no actual contract was ever formed, then those terms and conditions that you thought were going to guide the transaction may not be applicable. Or, those modifications you thought you made may be worthless.