Five elements of a contract

For the agreement with the hotel to be enforceable, contract law requires five elements to be present (Twomey & Jennings, 2011). The two elements of offer and acceptance will form the agreement. Consideration will distinguish the agreement from a gift, thereby, making it enforceable. Both capacity and legality will further determine whether the agreement is actually enforced.

Offer

The offer can be described as the indication by one party often called the offeror of his/her willingness to contract on the terms indicated in the offer (Twomey & Jennings, 2011). For instance, either I or the hotel must have initially expressed willingness to contract with each other before an offer can exist. An offer must, however, be distinguished from other matters that are normally characterized as preliminary negotiations. Three features distinguish an offer from these preliminary negotiations.

For one, the offer must be definite making it capable of acceptance (Twomey & Jennings, 2011). Anything that seems incomplete would, therefore, fail the test of an offer. An example would be a statement from the hotel to the effect that they may be willing to offer me a job if I meet some further unspecified conditions. I would definitely be precluded from relying on such a vague statement to insist on contracting with the hotel.

In addition, there must be an objective test in the sense that a hypothetical reasonable person should think that what is under consideration is actually an offer and not anything else (Mann & Roberts, 2012). This simply means that it should look like a contract as opposed to something else. For instance, the offer from the hotel should not look like it is a request for me to be a volunteer during my free time.

Lastly, the offer must be communicated to the offeree(Mann & Roberts, 2012). It follows from this that the hotel must have communicated its offer to hire be for it to actually constitute an offer. Thus, it would not have been open to me to accept an offer from the hotel if I was never informed of it.

Acceptance

Just like the offer, an acceptance is the signification, albeit by the offeree, of his/her readiness to be bound by the terms of the offer as made (Mann & Roberts, 2012). For instance, I would be accepting the offer from the hotel if my response to that offer strictly indicates that I am accepting it and no more. The slightest attempt on my part to accept the offer from the hotel even with the slightest modification would amount to a counter offer such that I now become the offeree with the hotel at liberty to accept my offer. This means that acceptance must always match the offer as opposed to attempting to modify its terms. It is a requirement that has come to be known as the mirror image rule given that acceptance must always mirror the offer.

There is also the possibility that the hotel could have revoked the offer or even the offer lapsing before my acceptance in which case there would have been no agreement between us. I was also under no obligation to accept the offer and could have chosen to reject it with the same consequence that no agreement would have been created between us. All these only serves to show that acceptance is just one of the four things that may happen following an offer.

Consideration

Even where an agreement has been formed through the interplay of offer and acceptance as already outline, neither party would still not be able to enforce it as against the other. One must further show that there was consideration for the contract to be enforceable. At a general level, consideration can be seen as the promise from one party to the contract that induces the detriment of the other party (Schubert, 2012). For instance, the promise by the hotel to pay me a certain amount can be considered as their consideration that induced my willingness to work for the hotel as a chef.

Capacity

An agreed with consideration may still fail if it turns out that one of the parties lacked the capacity at the time of formation. For instance, people adjudged mentally insane by the court would not have the capacity to enter into any contract (Schubert, 2012). Furthermore, contracts with minors would also lack the requisite capacity making those contracts voidable at the option of the minors involved. The general tenor of this analysis is that my arrangement with the hotel would only have been enforceable if both parties had the capacity to contract in the first place.

Legality

A final requirement to valid our arrangement with the hotel would legality in the sense that whatever arrangement entered into by both parties must be legal. It is obvious that there is nothing illegal working as a chef for the hotel but there are circumstances when the contract or some parts of it fail to meet the test of legality (Schubert, 2012). For example, noncompetition agreements such as the one in the present case may sometimes turn out to be illegal if they are overly broad in what they set out to restrict.

Governing law: common law or the Uniform Commercial Code

The contract under discussion is governed by common law and not the UCC. The conclusion derives from the fact that the UCC only applies to contracts involving the sale of goods (Twomey & Jennings, 2011). Anything other than sales as in the present situation must, therefore, be governed by the principles of common law. The subject matter under Article 2 of the UCC must be movable and tangible (Twomey & Jennings, 2011).  Working as an employed chef in the hotel involves selling my services which is intangible, thereby, falling outside the scope of Article 2 of the UCC.

Two circumstances when the non-compete agreement would be unenforceable

Non-compete agreements such as the present one are generally enforceable although there are circumstances when this may not always be the case (Twomey & Jennings, 2011). For instance, the agreement would be unenforceable in a circumstance where it stood alone as opposed to being part of an employment contract. Fortunately for the hotel, the agreement was actually contained in the original employment contract. The other circumstance would if the two year period imposed was considered to be too long. The determination on whether this is the case often has regards to the nature of employment. My job as a chef would not have allowed me access to very crucial information to warrant the two year limitation from working anywhere in the stated metropolitan area.

References

Mann,R.A. & Roberts,B.S.(2012).Smith & Roberson’s Business Law,15^th   edition.Mason,OH:South-Western Cengage Learning.

Schubert, F.A.(2012).Introduction to Law and the Legal System, 10th          edition.Boston,MA:Wadsworth Cengage Learning.

Twomey,D.P. & Jennings, M.M.(2011).Anderson’s Business Law and the Legal     Environment,21^st Edition.Mason, OH:South-Western Cengage Learning.

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