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Contracts: Deal or No Deal?


Shefrin, Deborah

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Shefrin discusses the basic elements that make contracts valid and enforceable. Such elements

include mutual assent, an offer, acceptance of the offer, consideration, and the capacity of both parties to

understand the terms, consequences, and legal purpose of the agreement.


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What basic elements make contracts valid and enforceable? This is the first of a series of Fiscal Therapy

columns on contracts that will be published periodically in this magazine. Look for future columns on

employment contracts, buying and leasing space and equipment, insurance and indemnity agreements, and

contracting for services.

In the course of their lives and careers, physical therapy professionals enter into a variety of contracts, such as

lease agreements, home or practice purchase contracts, employment contracts, insurance contracts, loan

agreements, and extended service or maintenance contracts. In many instances, no attorneys are involved and

no written agreements are prepared. Sometimes the parties may not even recognize they have entered into a

contractual relationship. Generally, this informal “hand-shake system” works quite well.

Sometimes, though, misunderstandings and disputes arise between the parties. Participants may become

angry, frustrated, and/or disappointed because they do not understand the nature of their relationship and the

basic elements that create or negate the existence of a valid and enforceable contract. So, what elements are

necessary to form a valid contract?

What Is a Contract?

A contract is a legally enforceable promise or agreement. In most circumstances it involves a pair or group of

mutual promises, or an agreement by one party to do something in exchange for a particular action by the other

party. Valid and enforceable contracts generally include a set of basic elements that include mutual assent, an

offer, acceptance of the offer, consideration, and the capacity of both parties to understand the terms,

consequences, and legal purpose of the agreement.

Mutual assent. The essential requirement of a contract is objective evidence that the parties engaged

demonstrate assent to the promises or agreement contained within the contract. What matters is “objective

intent” (eg, what a reasonable, neutral, and objective observer would understand the parties’ intent to be). This

means you cannot escape an otherwise valid contract by, for example, claiming it was just a joke-even if a joke

had been your true (subjective) intention-if a reasonable and objective observer would feel that the other party

did not know, or could not have known, that you were not serious when you made your offer. Signing a contract

is one way to show evidence of mutual assent. Alternatively, performance of the activities specified within a

contract may indicate a party’s assent to the terms of the offer.

Offer and acceptance. In general, an offer is a promise to do or to refrain from doing something in exchange for

a specified performance (eg, provision of a good or service), or the promise of performance. For an offer to be

the basis of a contract, it must be made 1) in a way that expresses willingness to enter into a bargain, and 2)

with the intention that it shall become binding on the other party as soon as the offer is accepted. An invitation to

negotiate an offer is not sufficient basis for a contract.

Acceptance is final and unqualified assent to the term or terms of an offer. To make the contract binding,

acceptance must exactly match the offer. That is, the party accepting the offer must accept all the terms of the

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want to ensure both clarity and completeness.

Clarity. The terms of the contract must be sufficiently precise, and they must be legally enforceable. It is not

enough for the parties to understand in their own minds the terms of the agreement. An outsider should be able

to clearly understand what the parties agreed to simply by reading the contract. Otherwise, how will a judge be

able to enforce the terms in event of a dispute?

Completeness. Do not assume that the terms of the contract are understood, and that they therefore needn’t be

spelled out in writing. If a term was important enough to discuss, it is important enough to be included in the

written contract.

In the interest of saving money and/or time, you may have considered using a template, such as something

downloaded from the Internet. If you tap that resource, do so with caution, as one size does not fit all. Contract

templates available on the Internet can serve as helpful resources for identifying issues to consider, but they

usually are not comprehensive and are unlikely to be tailored to your specific needs. If a contract is not drafted

with your precise situation in mind, it may not give you the flexibility and protection you really need. Also, a

contract template may not reflect current law and/or the laws applicable to your state.

Is Escape Possible?

A party may escape obligations set forth in a contract for one of the following reasons:

* A mutual or unilateral mistake mars a basic assumption upon which the contract was based. For example, a

PT enters into a contract to buy office space, but after a thorough title search both the PT and the seller

discover-to their mutual surprise-that the seller does not have clear title to the property.

* A misrepresentation of the facts induced one of the parties to enter into the contract. For instance, a seller of

practice-management software misrepresents the extent of the software’s capabilities.

* One of the parties entered into the contract under duress, implying that one party had inequitable leverage

over the other.

* The contract is deemed “unconscionable,” a legal term meaning that the terms and conditions of the contract

are so unfair, unreasonable, or unjust that no reasonable or informed individual would agree to them.

* The contract violates public policy. Agreements violating public policy of the state or country will not be

enforced by courts.

* Fulfillment of the terms is rendered extremely difficult or impossible by events occurring after the contracts

formation. For example, a building is to be sold to a physical therapy practice by a certain date, but hurricane

damage makes it extremely unlikely that the property can be rendered structurally sound by the agreed-upon

sale date.

* The contract’s purpose is rendered moot or irrelevant by virtue of events occurring after its formation. For

example, the building in the preceding example is completely destroyed by the hurricane.

The basic contract elements outlined in this column apply in most situations. It’s important to understand,

however, that there are nuances and exceptions based on a given contract’s type and/or subject. Future

columns in this occasional series will explore specific types of contracts into which PTs commonly enter.


APTA does not provide members with legal representation or advice. The information here is not to be

interpreted as specific legal advice for any particular provider. Only personal legal counsel, based on applicable

state and federal law, can give personal advice.

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by Deborah Shefrin, PT, JD


Deborah Shefrin, PT, JD, was a practicing physical therapist until 1991, when she graduated from law school.

She was a partner in a Chicago law firm involved in medical malpractice defense litigation and now is senior

attorney in the law department of Walgreen Co in Deerfield, Illinois. She is a member of APIA’S Committee on

Risk Management and Member Benefits and has served on the APIA Board of Directors and the Association’s

Ethics and Judicial Committee.


Contracts; Contract law;

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15 January 2015

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