Also known as: materially differs · material difference · materially differing · materially differ
Written by attorneys · grounded in primary & secondary sources — see below
2 senses
A divergence between the meanings that contracting parties attach to their manifestations of assent. The divergence prevents formation of a contract when neither party knows or has reason to know of the meaning attached by the other or when each party knows or has reason to know of the meaning attached by the other.
A divergence between the meanings that contracting parties attach to their manifestations of assent. The divergence prevents formation of a contract when neither party knows or has reason to know of the meaning attached by the other or when each party knows or has reason to know of the meaning attached by the other.
Monica Morgan negotiated with Meridian Motors to supply after-school tutoring. The written agreement called for intensive enrichment programs without defining the term. Internal emails showed that Morgan required small daily groups while Meridian expected larger weekly sessions, and each side knew of the other's different understanding. Because the parties attached materially different meanings to the key term, no contract was formed.
A difference between state and federal rules that would substantially affect the outcome of litigation. Ignoring the state rule produces a result in federal court that differs from the result that would obtain in state court.
Mustafa Mahmoud sued in federal court in diversity after the general contract limitations period had expired. State law contained a reliance-tolling rule triggered by settlement assurances that would have kept the action timely. Ignoring the state tolling rule would have barred the claim in federal court while the same facts would have permitted the claim in state court. The difference in result made the tolling rule substantive for Erie purposes.
A difference between state and federal rules that would substantially affect the outcome of litigation. Ignoring the state rule produces a result in federal court that differs from the result that would obtain in state court.
Each sense below has its own examples, sources, and questions.
No contract forms if the parties attach materially different meanings to their manifestations and neither knows or has reason to know of the other's meaning or each knows or has reason to know of the other's meaning. Internal communications showing each side recognized the divergence yet proceeded anyway demonstrate the absence of mutual assent.
Statutes of limitations and tolling rules are substantive when ignoring them would produce a result in federal court materially different from the result in state court. A federal court sitting in diversity must therefore apply the state tolling rule if it would keep the action timely under state law.
…however, is exceedingly strict: "The marks must create the same, continuing commercial impression, and the later mark should not materially differ from or alter the character of the mark attempted to be tacked." Van Dyne-Crotty , 926 F.2d at 1159 (emphasis added) (citations and quotation marks omitted). In other words, "the…