Definition
A bargain is a mutual agreement between two or more parties, typically one in which each side gives and receives something of value. In contract law, the term carries two related but distinct senses:
1. As a synonym for contract or agreement generally: Any mutual undertaking in which the parties exchange promises or performances. The word emphasizes the bilateral, consensual nature of the arrangement — both sides have agreed, both sides are bound.
2. As the specific mechanism of contract formation (the "bargain theory" of consideration): Under classical contract doctrine, a bargain is the process by which a promise is exchanged for something given in return — a performance, a forbearance, or a counter-promise. This sense is central to the doctrine of consideration: a promise is enforceable when it is bargained for, meaning the promisor sought the return and the promisee gave it in exchange. This is the sense used in the Restatement (Second) of Contracts.
Common Language
Modern common usage (Wiktionary): An agreement between parties concerning the sale of property; also, an item purchased for significantly less than the usual or recommended price; a gainful transaction.
Historical common usage (Webster's 1913): An agreement between parties concerning the sale of property, by which one binds himself to transfer the right to some property for a consideration, and the other binds himself to receive the property and pay the consideration. "A contract is a bargain that is legally binding."
The common meaning of "bargain" has drifted toward the colloquial sense of a good deal — something bought cheaply. The legal meaning carries no implication of favorable pricing. In law, a bargain is simply a mutual exchange; whether either party got a "good deal" is irrelevant. Researchers reading historical sources should also note that the everyday sense and the legal sense once overlapped more cleanly, which is why older dictionaries treat the terms "bargain" and "contract" as nearly interchangeable.
Common Confusion
Bargain vs. Agreement vs. Contract: Historical legal dictionaries — particularly Bouvier's — explicitly wrestled with the relationship between these three terms. The consensus in those sources is that "bargain" and "agreement" are near-synonyms, with "bargain" placing slightly greater emphasis on the mutuality of the exchange. "Contract" is the broader category: all bargains may be contracts, but not all agreements rise to enforceable contracts. Researchers should not assume that historical use of "bargain" signals a legally enforceable obligation without context.
Bargain (the act) vs. Bargain (the thing obtained): The legal literature uses "bargain" as a verb (to bargain), as a noun describing the process (the bargain between the parties), and — in phrases like "benefit of the bargain" — as a shorthand for the entire contractual exchange. These uses are context-dependent and should not be conflated.
Recognized Forms
/SUBTYPES
Bargain and Sale: A historical conveyancing device by which an owner (bargainor) agreed to sell land to another (bargainee) for a consideration, raising a use in the bargainee's favor. Recognized and regulated by the Statute of Uses (1535). This form of transfer is a distinct legal doctrine and should not be treated as merely an archaic synonym for a modern sale.
Collective Bargaining: The process by which employees, through a representative union, negotiate with an employer over wages, hours, and working conditions. Governed in the United States primarily by the National Labor Relations Act. The term "bargaining" here retains the core sense of mutual negotiation but operates within a heavily regulated statutory framework entirely distinct from general contract formation.
Plea Bargaining: In criminal procedure, a negotiated agreement between a prosecutor and a defendant — typically involving a guilty plea in exchange for a reduced charge, a sentencing recommendation, or dismissal of other counts. The "bargain" element is the exchange of the defendant's plea for prosecutorial concessions. Subject to judicial acceptance and due process scrutiny.
Why It Matters in Research
The word "bargain" appears across entirely different areas of law and should alert the researcher to context before any meaning is assumed. A citation to "bargain" in a contracts treatise almost certainly implicates consideration doctrine; the same word in a labor law source involves collective negotiation under the NLRA; in a criminal law source, it points to plea agreement practice. These bodies of law share vocabulary but not doctrine.
The phrase "benefit of the bargain" is particularly important in contract remedies research. Expectation damages are designed to give the non-breaching party the benefit of the bargain — what they would have received had the contract been performed. This phrase appears constantly in damages opinions and must be distinguished from reliance damages (which restore the plaintiff to the pre-contract position) and restitutionary damages (which prevent unjust enrichment). Researchers pursuing damages issues should trace whether a court is awarding bargain-based or non-bargain-based relief.
In historical sources, "bargain and sale" requires special attention. Pre-nineteenth century conveyancing materials use "bargain" in the technical sense of this equitable transfer device. Researchers working with colonial-era property records, early state court opinions, or English common law materials may encounter "bargain and sale" as a distinct mode of conveyancing that has no direct modern equivalent.
The "bargained-for exchange" test for consideration — the dominant modern framework — is not the only historical test. Researchers working in earlier American or English sources will encounter benefit-detriment formulations and other approaches. The shift to the bargained-for exchange framework is a development of the late nineteenth and twentieth centuries, significantly shaped by Holmes's influence and codified in the Restatements.
Historical Dictionary Support
Black's (1st and 2nd Ed.) and Bouvier's agree on the core definition: a mutual undertaking between parties, one to sell and the other to buy. Both sources flag the key distinction from "agreement" — that "bargain" more prominently signals mutuality. Bouvier's states this most clearly: "Bargain involves the idea of a mutual act of two persons." This emphasis on bilateralism is jurisprudentially significant, as it connects the term directly to classical consideration theory.
Rapalje & Lawrence's entry in the provided source material does not address "bargain" — the excerpt concerns trial at bar and admission to the bar, appearing to be a misfiled or mislabeled extract. Researchers should not rely on that source for this term.
Anderson's Dictionary of Law, as excerpted, also does not contain a direct entry for bargain in the provided material.
None of the historical dictionaries fully anticipate the modern Restatement framework's technical use of "bargained-for exchange" as the operative test for consideration. Historical sources treat "bargain" primarily as a synonym for contract or mutual agreement, not as a term of art within consideration doctrine. That refinement developed through judicial and academic elaboration, not through the dictionary tradition.
Jurisdictional Note
The basic meaning of bargain as a mutual agreement is uniform across common law jurisdictions. The Restatement's bargained-for exchange test is widely adopted in American jurisdictions but not universal — some states retain benefit-detriment formulations. Collective bargaining and plea bargaining operate under jurisdiction-specific statutory frameworks that differ significantly between federal and state systems and between U.S. and non-U.S. jurisdictions.
Encyclopedia Cross-Reference
Collective Bargaining — Duty to Bargain and Mandatory Subjects (Law Mind Employment & Labor Law Encyclopedia)
Remedies — Expectation Damages (Benefit of the Bargain) (Law Mind Contracts & Commercial Law Encyclopedia)
Plea Bargaining — Law, Practice, and Judicial Oversight (Law Mind Criminal Law Encyclopedia)