In New York, for a legally enforceable agreement to exist at contract, the Plaintiff must establish an offer, acceptance of that offer, consideration moving between the parties, mutual assent, and intent to be bound. See Kwalchuk v. Stroup, 61 A.D.3d 118, 121 (1st Dep’t 2009). An Offer is defined as “…the manifestation of willingness to enter into a bargain, so made as to justify another person in understanding that his assent to that bargain is invited and will conclude it” (see Restatement (Second) of Contracts §24). “…(I)t must create a reasonable understanding in the offeree that the offeree has the power to create a contract by simply manifesting an assent to the offer…” See Dr. John E. Murray, Jr., Corbin on Contracts (Desk Edition 2015) § 1.05. Acceptance of an Offer is a “…manifestation of assent to the terms thereof made by the offeree in a manner invited or required by the offer…” See Restatement (Second) of Contracts §50 (1). Acceptance can be by performance or a promise to perform, if the offer invited such mode of acceptance. Acceptance must be a voluntary act on the part of the offeree. Consideration is the bargained for exchange moving between the parties. Generally, in an arms length bargain, the Courts will not inquire into the adequacy of consideration. However, the bargained for exchange must move between the parties simultaneously, meaning generally, consideration must not be something done in the past, or something the party is already legally obligated to do. Lastly, for an enforceable agreement to exist, it must meet the requirements of the Statute of Frauds.
Breach of Contract
A Breach of contract occurs, when performance of the contractual obligations is due, but one or more of the parties to that contract fails to perform their obligations. “…[A] contract is not breached until the time set for performance has expired…” See Cole v. Macklowe, 64 A.D.3d 480, 480 [1st Dep’t 2009]. Alternatively, anytime before performance is due, if a party makes a clear, and unambiguous statement of an intent not to perform, or from that party’s conduct, it can be reasonably deduced that the party does not intend to perform, there is anticipatory breach of the contract. The party to whom performance is due may have recourse to remedies at this point in time, not withstanding performance is due sometime in the future.
Generally, a party that suffers a loss due to a breach of contract may sue for remedies under patent law firm or equity. The most common type of remedy under the law would be damages. Providing it is foreseeable, the law will afford the aggrieved party monetary damages, the measure generally, being to put the aggrieved party in the position as if the contract had taken place. See Restatement (Second) of Contracts §§ 344-352 et al. If, on the other hand, the facts of the case dictate that damages are not feasible, equity may step in to afford what is known as an equitable remedy such as specific performance or injunction. This is especially so in real property contracts, or contracts where the subject matter of the contract is a unique good. It should be noted however that specific performance will not be available to compel individual performance of a contract due to constitutional issues that arises, specifically the 13th Amendment of the U.S. Constitution, thus varying somewhat from other common law jurisdictions. See Vanderbilt University v. DiNardo, 174 F.3d 751 (6th Cir. 1999).