Do l need a lawyer to draft valid contract?
Dear Mirror Lawyer, do I need a lawyer to look over a contract to make it valid? Ama Owusu.
Dear Ama, while it is prudent to have a lawyer look over a contract to ensure that your interests are well protected thereunder, a lawyer’s oversight over a contract is not what makes it valid. Generally, the following elements are determinants of whether a contract is valid and enforceable.
a) Offer and acceptance: In determining whether a contract has been made, the courts usually begin by looking out for a promise by one party, which usually takes the form of an “offer” and a corresponding “acceptance” of the offer by the other party. The exchange of a promise or a promise for an act is what constitutes the bargain or agreement. Acceptance may be by words, conduct or in writing.
b) Intention to create legal relations: This element requires that the parties must have clearly shown an intention that their agreement or exchange of promises was intended to have legal consequences or to be legally enforceable. In everyday life, a great number of the consensual agreements and arrangements made are often not intended to create any legal relations between the parties, so it is important to make this distinction.
c) Capacity to contract: It is important to establish that the parties have capacity or power in law to create contractual relations between them. Issues of capacity arise where the ability of one or both parties to assume contractual obligations is limited by the law to ensure their protection for policy reasons. The categories of persons whose capacity to contract is limited by statute or under the common law include infants, mentally incompetent persons and drunkards. The Companies Act 2019 (Act 992) defines an infant to mean a natural person under the age of 18 years or any other age that is declared by an enactment to be of full age for legal purposes.
d) Consideration: This is a very crucial element in determining whether a valid contract has been made. The courts will enforce a promise made in favour of a party only if such a party can show that he/she has given something of value in exchange for the promise made to him/her, which is consideration. Consideration may be in the form of a return promise or the actual performance of a stipulated act.
