What is your opinion? Did Quentin buy himself a horse? Yes or no, and explain.

Let's play with this. Think of this as a market, OK? And I'm coming to market, and I have-- you've got to use your imagination here-- a horse and a mule. And I want to sell this hoofstock. OK?

Now the horse, I'm asking $5,000 for. The mule, well, it's a mule. I'm asking $1,000 for the mule. So [? Quinton, ?] you're obviously a serious buyer, and we begin to engage in some serious negotiation. Offer, acceptance, back and forth, back and forth, back and forth. This goes on forever.

Finally, I exclaim, [? Quinton, ?] you win. You got me. You're quite a negotiator. I offer you the horse for $800. [? Quinton, ?] thrusts out his hand, shakes mine, and exclaims,

Thank you.

It's a deal. OK, we got a deal. OK. Amber, what just happened here?

You sold a horse for $800.

Huh?

You definitely sold a horse to [? Quinton ?] for $800.

A horse?

Yep.

A horse?

Yep.

What did you think you bought?

I bought a horse for $800.

No, no, no, no, no, no, no, no horse. What I thought I sold you, what I said, was I would sell you the mule for $800, yes?

No, no, no.

No?

Definitely heard horse.

Definitely heard horse.

Well, that's a problem. We got a problem. We got a problem, because what I thought I said was that I would sell you the mule. I'm not going to sell this horse for $800. I was asking $5,000. Something's wrong here. So let's just stop this for a minute, because we're talking about what's in my head. And between the synapses of my brain, there wanders a mule. What was in between the synapses of your brain?

I was talking to you about a horse initially.

Well, it seems that we have something less than a meeting of the minds. Do we have a contract? We don't have a meeting of the minds.

Well, we do from my perspective, and until we actually exchange the good, or the horse or the mule, for the money, then we can have some space to clear it up. Well, that's interesting. If we have a contract, does it only exist at the time that the performance of the promises actually takes place? When does a contract, if at all, come in to being?

As soon as you make the deal.

As soon as we make the deal. OK, so is it necessary-- are you saying, [? Quinton, ?] that we can't evaluate whether we have the contract, or, if at all, it doesn't exist until such time as you give me the money and I give you the hoofstock?

It existed at the moment that we shook hands on it.

Yeah. Yeah.

But I was thinking from your perspective now. We could potentially negotiate further on that contract at the point which we exchanged the money for the actual hoofstock.

What you're saying is, I think-- don't let me put words in your mouth-- but I think what you're saying is in your mind, you're not quite sure if we have a contract. But you're saying there might be a dispute about whether we do or we don't. And like all disputes in life, and certainly in contract law, you can always negotiate after the fact.

But the real question for us here is, did the contract ever come into being in the first place? Was there volition? Was there a voluntary agreement to sell the horse when I thought I was selling a mule and you thought you were buying a horse?

In other words, do we need a true meeting of the minds for there to be offer and acceptance? And therefore, if the necessary conditions of consideration, capacity, legality are all present, we got a contract.

Or are you saying you're not sure and we can always negotiate it later. Sure, if we make a contract, we can always rescind it. We can always change it. We can modify it. We can negotiate. We'll talk all about that later in our sessions.

But the real question right now is, did we have a contract in the first place? What do you think here, Amber?

I think you did.

You think we did.

You said "horse."

You say it's horse. Is there anything else you'd like to know that's going to help us figure out what we've got here? I say no. [? Quinton ?] says yes. What are the facts that might you like to know that aren't here on the table?

After we shook hands and made the deal, did you hand me the horse?

No, no, no, I didn't hand you the horse. I wasn't going to give you the horse, because after all, I was going to give you the mule for $800, not the horse. So we never get off square one.

The problem is, of course, if we have a contract, I'm obligated to give you the horse for $800. If we don't-- well, if you bought the mule, then I'm obligated to give you the mule. But if we don't have any contract at all for lack of volition, for lack of a deal, then we don't have anything at all. We can just walk away, or we can make a different deal.

But the question is, what else would you might want to know about what happened here? If this were a real market, and you saw the entire thing play out, what else would you have observed?

We would have observed the initial negotiation.

What were we negotiating about?

The horse or the hoofstock.

I had a horse and I had a mule. Remember I said, we went back, went back, and back, and back, and back. What were we going back and forth about?

The terms.

The terms of the sale of the mule or the terms of the sale of the horse?

Well, you said horse, but you meant mule.

I know. I know. But what I'm getting at is I'm trying to fill in the actual facts. It's interesting, in law, in real life, the facts are whatever you can get a jury to believe. We know that a lot of what lawyers do has to do with the proving.

Of course, in a course like this, we're going to assume the facts in order to study the law. That's the nature of this journey that we are engaged in together. That's what this is all about.

But coming back to the marketplace, coming back to the scenario that we're dealing with right here, what I'm really asking you is, what was our negotiation about? Was it about the mule, back and forth and back and forth, all about the mule? And then all of a sudden when it came time to get bombastic and slam down my hand, I simply said, horse, when I meant mule.

Now if that were the case-- see, part of the problem is that I didn't tell you that. I didn't tell you what the negotiations were about. But if the negotiations, for example, would have led a person to assume that I simply had misspoken, then that's very different than if all of the negotiations were about the horse, and you had every reason to assume I was correct. You see how that makes a difference?

Yes.

It also makes a difference if you can really logically expect to get a horse that I was asking $5,000 for for $800. So what's the real question? The real question here is, the objective theory of contract law. We can never know what's zipping across the synapses of your brain. And you certainly don't know what's going through my brain.

But you never do. The only way we can know what people are thinking is how they act. So in law, in contract law, specifically, we use the objective theory of contract law. The objective theory of contract law is this idea that we look to see what a reasonable person would have assumed you meant. What is the objective manifestation of a set?

So it's not what you thought I said. It's not what I said. It's what you thought I said measured by what a reasonable person would have thought under the circumstances. Now where are we going to find this reasonable person? I've been practicing law for over 40 years, and every one of my clients all these years thought that they were the reasonable person. I can assure you they weren't.

Very unreasonable, a lot of these people. Oh, I shouldn't say that. But here's the point. Here's the point. We never really know. So the reasonable person, practically, is the person on the jury.

And so if this deal is between the two of us, we're going to make Amber here the reasonable person. And the question is, how did he look? How did he sound? What were the negotiations like? And what did [? Quinton ?] think, and was he reasonable in so thinking?

So all right, so we've covered a bunch of things about the horse and the mule. So I simply will raise the question, did [? Quinton ?] buy himself a horse?