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61. Was the instruction correct?
A plaintiff sued a defendant for breach of an implied-in-fact contract. The case went to trial, and after all the evidence was presented, the court issued the following instruction to the jury: «Conduct will create an implied-in-fact contract if the conduct of both parties is intentional, and if each knows, or has reason to know, that the other party will interpret the conduct as an agreement to enter into a contract.»
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A is incorrect. A promise in an implied-in-fact contract does not have to be evidenced by a signed writing; rather, the promise may be inferred from the parties' conduct.
B is incorrect. An implied-in-fact contract is a type of enforceable contract based on a tacit promise, rather than an express promise. Whether the parties have entered into an agreement is determined by an objective standard, not by the subjective intent of the parties.
D is incorrect. As with any contract, an implied-in-fact contract requires mutual assent. Implied contracts are formed by manifestations of assent other than oral or written language, i.e., by conduct.