CLASSIFICATIONS OF CONTRACTS & CONTRACT CREATION
Oral vs. written 
/ Express vs. implied / Unilateral vs. bilateral / Executed vs. executory
Oral vs. written
A contract may be in writing or it may be an oral, or parol, contract. Certain oral contracts are valid and enforceable, others are not enforceable, even if valid. For example, Florida requires listing agreements of terms longer than one year, sales contracts, option contracts, deeds and mortgage instruments, and leases exceeding one year to be in writing to be enforceable.
Express vs. implied
An express contract is one in which all the terms and covenants of the agreement have been manifestly stated and agreed to by all parties, whether verbally or in writing.
An implied contract is an unstated or unintentional agreement that may be deemed to exist when the actions of any of the parties suggest the existence of an agreement.
A common example of an implied contract is an implied agency agreement. In implied agency, an agent who does not have a contract with a buyer performs acts on the buyer’s behalf, such as negotiating a price that is less than the listing price. In so doing, the agent has possibly created an implied contract with the buyer, albeit unintended. If the buyer compensates the agent for the negotiating efforts, the existence of an implied agency agreement becomes even less disputable.
Bilateral vs. unilateral
A bilateral contract is one in which both parties promise to perform their respective parts of an agreement in exchange for performance by the other party.
An example of a bilateral contract is an exclusive listing: the broker promises to exercise due diligence in the efforts to sell a property, and the seller promises to compensate the broker when and if the property sells.
In a unilateral contract, only one party promises to do something, provided the other party does something. The latter party is not obligated to perform any act, but the promising party must fulfill the promise if the other party chooses to perform.
An option is an example of a unilateral contract: in an option-to-buy, the party offering the option (optionor) promises to sell a property if the optionee decides to exercise the option. While the potential buyer does not have to buy, the owner must sell if the option is exercised.
Executed vs. executory
An executed contract is one that has been fully performed and fulfilled: neither party bears any further obligation. A completed and expired lease contract is an executed contract: the landlord may re-possess the premises and the tenant has no further obligation to pay rent.
An executory contract is one in which performance is yet to be completed. A sales contract prior to closing is executory: while the parties have agreed to buy and sell, the buyer has yet to pay the seller and the seller has yet to deed the property to the buyer.
CONTRACT CREATION
Offer and acceptance Counteroffer Revocation of an offer Termination of an offer Assignment of a contract Contract preparation
Offer and acceptance The mutual consent required for a valid contract is reached through the process of offer and acceptance: The offeror proposes contract terms in an offer to the offeree. If the offeree accepts all terms without amendment, the offer becomes a contract. The exact point at which the offer becomes a contract is when the offeree gives the offeror notice of the acceptance.
Offer. An offer expresses the offeror’s intention to enter into a contract with an offeree to perform the terms of the agreement in exchange for the offeree’s performance. In a real estate sale or lease contract, the offer must clearly contain all intended terms of the contract in writing and be communicated to the offeree.
If an offer contains an expiration date and the phrase “time is of the essence,” the offer expires at exactly the time specified. In the absence of a stated time period, the offeree has a “reasonable” time to accept an offer.
Acceptance. An offer gives the offeree the power of accepting. For an acceptance to be valid, the offeree must manifestly and unequivocally accept all terms of the offer without change, and so indicate by signing the offer, preferably with a date of signing. The acceptance must then be communicated to the offeror. If the communication of acceptance is by mail, the offer is considered to be communicated as soon as it is placed in the mail.
Counteroffer
By changing any of the terms of an offer, the offeree creates a counteroffer, and the original offer is void. At this point, the offeree becomes the offeror, and the new offeree gains the right of acceptance. If accepted, the counteroffer becomes a valid contract provided all other requirements are met.
For example, a seller changes the expiration date of a buyer’s offer by one day, signs the offer and returns it to the buyer. The single amendment extinguishes the buyer’s offer, and the buyer is no longer bound by any agreement. The seller’s amended offer is a counteroffer which now gives the buyer the right of acceptance. If the buyer accepts the counteroffer, the counteroffer becomes a binding contract.
Revocation of an offer
An offer may be revoked, or withdrawn, at any time before the offeree has communicated acceptance. The revocation extinguishes the offer and the offeree’s right to accept it.
For example, a buyer has offered to purchase a house for the listed price. Three hours later, a family death radically changes the buyer’s plans. She immediately calls the seller and revokes the offer, stating she is no longer interested in the house. Since the seller had not communicated acceptance of the offer to the buyer, the offer is legally cancelled.
If the offeree has paid consideration to the offeror to leave an offer open, and the offeror accepts, an option has been created which cancels the offeror’s right to revoke the offer over the period of the option.
Termination of an offer
Any of the following actions or circumstances can terminate an offer:
- acceptance: the offeree accepts the offer, converting it to a contract
- rejection: the offeree rejects the offer
- revocation: the offeror withdraws the offer before acceptance
- lapse of time: the offer expires
- counteroffer: the offeree changes the offer
- death or insanity of either party
Assignment of a contract
A real estate contract that is not a personal contract for services can be assigned to another party unless the terms of the agreement specifically prohibit assignment.
Listing agreements, for example, are not assignable, since they are personal service agreements between agent and principal. Sales contracts, however, are assignable, because they involve the purchase of real property rather than a personal service.
Contract preparation Remember, brokers and associates may not draft contracts, but they may use standard promulgated forms and complete the blanks in the form.
As a rule, a broker or associate who completes real estate contracts is engaging in the unauthorized practice of law unless the broker is a party to the agreement, such as a in a listing agreement or sales contract. Brokers and associates may not complete leases, mortgages, contracts for deed, or promissory notes to which they are not a party.
Licensees must be fully aware of what they are legally allowed to do and not do in preparing and interpreting contracts for clients. In addition to practicing law without a license, they expose themselves to lawsuits from clients who relied on a contract as being legally acceptable.
