An express contract is an exchange of promises where terms by which the parties agree to be bound are declared either orally or in writing, or a combination of both, at the time it is made.
Required Components
Whether oral or written, the contract must manifest a mutual intent to be bound expressed in a manner capable of being understood, and include a definite offer, unconditional acceptance, and consideration.
Distinguished from a Contract-Implied-in-Fact
A contract implied in fact consists of obligations arising from a mutual agreement and intent to promise where the agreement and promise have not been expressed in words.
An express contract and a contract-implied-in-fact both require mutual assent and a meeting of the minds. However, an express contract is proved by an actual agreement (either written or oral), and a contract-implied-in-fact is proved by circumstances and the conduct of the parties.
See e.g., Critz v. Union Oil Co., 17 F. App'x 560 (9th Cir. 2001); Caron v. Andrew, 133 Cal.App.2d 412, 284 P.2d 550 (Cal. Ct. App. 1955)
[Last updated in November of 2022 by the Wex Definitions Team]
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