This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
The statement that agreement is an essential element of a genuine contract is therefore so true that it might be treated as nothing but a restatement of a definition of contract in another form, if it were not for difficulties in applying such general principle to particular combinations of fact, and in determining whether the law insists upon a real meeting of the minds of the parties to the contract, or whether the term "meeting of the minds" really means the performance of certain outward acts and the making of certain statements or declarations which may not in every case express the real intention of the party to the contract; but which represent a standardized intention which the law recognizes and to which it gives effect.
11 Louisiana & N. W. R. Co. v. Athens Lumber Co., 134 La. 788, L. R. A. 1015B, 856, 64 So. 714.
12 England. Gray v. Bompas, 11 C. B. (N.S.) 520.
Michigan. Campau v. Michell, 103 Mich. 617, 61 N. W. 890.
New York. Herter v. Mullen, 159 N. Y. 28. 70 Am. St. Rep. 517, 44 L. B. A. 703, 53 N. E. 700.
Ohio. Elevator Co. v. Brown, 36 O. S. 660.
Virginia. Grice v. Todd, 120 Va. 481, L. R. A. 1917D, 512, 91 S. E. 609.
Wisconsin. Adler v. Mendelson, 74 Wis. 404, 43 N. W. 505.
Contra: Mason v. Wierengo's Estate, 113 Mich. 151, 67 Am. St. Rep. 461, 71 N. W. 489.
1 Thomas v. Guarantee Title ft Trust Co., 81 O. S. 432, 26 L. R. A. (N.S.) 1210, 91 N. E. 183.
2 See ch. LXIII.
3 See ch. LXXIII.
4 Thomas v. Guarantee Title ft Trust Co., 81 O. S. 432, 26 L. R. A. (N.S.) 1210, 91 N. E. 183.
The party who makes the offer may never intend that it shall take effect as a binding offer, as where such offer is intended as a joke and not as a serious proposition,1 or where he makes the offer with a mental reservation.2 By mistake or fraud the offeror may use words which he does not intend to use, or he may intend to use the words which he actually uses, but his intention to use the words which he does use, may be induced by mistake, fraud, and the like.3 The offeror may have intended to make the offer in the very terms which he has used, but before such offer is accepted, the offeror may have changed his mind and may have revoked such offer without giving notice to the offeree of such change of intention.4 In correspondence contracts the expression "meeting of the minds" must be qualified to suit the necessities of a transaction in which an appreciable interval of time must elapse between the expression by either party of his willingness to be bound and the adversary party's knowledge thereof.5 If the contract is in writing the language used determines whether the minds of the parties met, or not.6 The offeror may have attached a special meaning to certain terms which he employs, which is not the meaning which such terms ordinarily bear, and of which special meaning the offeree may be ignorant.7 The term "meeting of the minds" is at best figurative. In cases of these sorts, there is evidently no real "meeting of the minds." The parties to the transaction do not will the same thing at the same time. If we insist on saying that there is a meeting of the minds in these cases, we are extending a figure of speech so as to make it a legal fiction. In cases like the foregoing, the problem which is propounded to the law is whether it will demand a genuine meeting of the minds; whether it will regard the actual, though secret, intention of one or both of the parties to the transaction; or whether it will judge the transaction by their acts and declarations, ignoring their secret uncommunicated intention. If a definite answer can be given to these questions, and the court decides to enforce the transaction as it is shown by the outward acts and declarations of the parties, ignoring their secret uncommunicated intention, it makes but little difference in most cases whether we say that we do not regard the real intention of the parties in all cases, and that we do not require an actual meeting of the minds in all cases; or whether we say that we require an actual meeting of the minds, but that under the foregoing cases the parties are estopped to deny that their actual intention is that which is shown by their outward and visible acts.
1See Sec. 80.
2 See Sec. 83.
3 See ch. VI et seq.
4 See Sec. 133 et seq.
5 See Sec. 198 et seq.
6 Williams v. Burdick, 63 Or. 41, 126 Ac. 603 [denying rehearing 63 Or. 41, 125 Ac. 844]. See ch. LXIII.
7 See Sec. 83.