To form a binding contract there must be a valid offer, acceptance and consideration.
A valid offer requires (1) a present intent to be bound; (2) definition of all essential terms leaving nothing open to
further discussion; (3) allows the offeree to form the contract by merely accepting it.
An acceptance must follow the mirror image rule, such that even a slight change in terms converts the acceptance
to a counteroffer.
Consideration requires a bargained for legal detriment. This may be in the form of a benefit received or a
detriment induced.
Does Milhous' make a valid offer?
Issue 1: Did Milhous exhibit a present intent to be bound?
Rule: A present intent to be bound is satisfied if a reasonable person would believe the element is present.
Application : Although contingent on the lowest possible price, Milhouse does exhibit a present intent to be
bound. His statement "I would like to buy your immortal soul . . ." conveys an active present tense verb affirming
his present intention.
Conclusion: Milhous has expressed an intent to be bound
Issue 2: Did millhouse define all essential terms?
Rule: Essential terms of price quantity and subject matter must be defined such that nothing is left open to
question.
Application: Milhous clearly defines the subject matter as Bart's soul. Bart's soul is a specific item of which there is
a quantity of one assumed by the offer (ignoring the philosophical discussion). Milhous fails to name a price. Price
is an essential term. It would be acceptable if Milhous provided some objective means of deriving the price,
however "the lowest possible price" is not an objective method.
Conclusion: Milhous did not define all essential terms, thus his offer is invalid.
Issue 3: May Bart accept the offer by merely saying yes?
Rule: An offer must leave nothing open to discussion such that an offeree need only say yes to accept the
contract. This applies the mirror rule, that the acceptance must exactly mirror the offer.
Application: Because the price term is ambiguous, Bart may not simply accept without providing this essential
term. Providing this term will not satisfy the mirror rule but will instead make Bart the offeror.
Conclusion: Since Bart may not accept by simply saying yes, this is not a valid offer. His acceptance can not comply
with the mirror image rule.
Does Bart's reply constitute a valid offer?
Issue 4: Does Bart express a present intent to be bound?
Rule: stated above
Application: Bart exhibits a present intent to part a fool from his money, however Bart does not believe in the
existence of his soul. By his statement, "If I had one it would be yours, " he disqualifies his present intent to be
bound. Because Bart does not recognize any consideration on his own part he is not offering to bind himself to
anything.
Conclusion: Bart does not exhibit a present intent to be bound because he offers nothing to which he may be
bound and he uses qualified language of "if" and "would be".
Issue 5: Does Bart define all essential terms?
Application: Bart supplies the missing term from Milhous' offer by including a price of $5. While bart does not
affirm the existence of the subject matter, the subject matter is clearly inferred to be Bart's one and only soul
based on the communication between Milhous and Bart.
Conclusion: Bart's offer does provide all essential terms.
Issue 6: May Milhous accept the offer by merely saying yes?
Application: All of the terms are present in Bart's reply. Milhous may accept with a mirror image (a simple yes).
Conclusion: While Milhous may accept with a simple yes and no change to the terms, because the contract fails
on other rules, his acceptance will not stand.
Is the consideration element satisfied?
Issue 7: Is valid consideration provided by both parties
Rule: The presence of consideration requires a benefit received or detriment incurred by both parties.
Application: Following the acceptance, Milhous remits $5 via PayPal. Thus Milhous has provided consideration.
The wording of the problem suggests that Bart's soul exists and that it can be transferred. Therefore a reasonable
person accepting the facts as stated would affirm that Bart has provided consideration.
Counterargument: Bart does not believe in the existence of his soul. This means in his own mind he is not
providing valuable consideration and his promise is illusory.
Conclusion: this element turns on whether the soul actually exists, however should bart find that he has lost his
soul, he may find remedy by challenging his own mistake as to consideration.
Conclusion
This fact pattern is fraught with defects. Milhous failed to make a valid offer and Bart's offer was for subject
matter he deems imaginary. As it stands, if Bart's soul exists, it is in the possession of Milhous, assuming transfer
is somehow automatic in dealings with the ephemeral. However the contract is voidable by Bart because he did
not exhibit a present intent to be bound and his promised consideration was illusory.