Assess 2 Flashcards
Objective Test
“Reasonable Person” understands it to be a contract as he so understood, it constitutes a valid contract
Promise Def - Rest 2nd §2(1)
A manifestation of intention to act or refrain from acting in a specified way, so made to justify a promisee in understanding that a commitment has been made
Offer def - Rest 2nd §24
The manifestation of willingness to enter into a bargain, so made as to justify another person in understanding that his assent to that bargain is invited and will conclude it
Was there a Term (Peerless) that was MATERAIL to the contract that was misunderstood by a reasonable party?
No contract
Solicitation for an offer (Advertisements) =
Generally NOT an offer (pepsi case)
Can an Offer be sent to more than one party?
Yes
Acceptance Def - Rest 2nd §50 (1)
A manifestation of assent to the terms made by the offeree in a manner invited or required by the offer
Offeror is the ____
Master of the Offer
2 Modes of Acceptance
- Promise
2. Performance
A Promise as acceptance is called a ____ contract
“Bilateral”
With a bi-lateral contract both parties ___ some ___
owe —- performance
Performance as acceptance is called a ____ contract
Unilateral
With a unilateral contract
= offeror owes some performance after the contract is formed
2 examples of Unilateral contracts
- reward
2. commission
What is definition of Assent ?
Acceptance is the manifestation of assent to the terms in a manner invited or required by the offer
4 step Analysis of a. Bi-Lateral (Promise) Contract
[Both parties promise and Both parties owe performance ]
- Once we know what the offer is (Determine who has the power to accept)
- Then see what it Specifies as Acceptance
- Determine if that has taken place
- Did they communicate back the acceptance? Did They need to by the terms?
Bi -lateral contract Notification of Acceptance - the offeree must ___
…exercise reasonable diligence to notify the offeror of acceptance
or
that the offeror receive the acceptance seasonably
When you may dispense w/ notice (Implied Dispense)
~ Revocation of a General Offer (Advertised offer) (Smoke Ball case)
When offer is made by advertisement in a newspaper, or general notification, to the public.
- The offeree’s power of acceptance is terminated when a notice of termination is given publicity by advertisement or other general notification
- equal to that given to the offer
and - no better means of notification is reasonably available.
Acceptance by performance (unilateral contracts): Notification is _____
generally not required.
– 2 exceptions:
- Offer may request notification
- Offeree has reason to know the offeror lacks adequate means to learn of the performance
If an offeree who accepts by rendering a performance has reason to know that the offeror has no adequate means of learning of the performance with reasonable promptness and certainty his contractual duty is ….
… discharged (over) unless
- the offeree exercises reasonable diligence to notify the offeror of the acceptance,
or - the offeror learns of the performance within a reasonable time,
or - The offeror indicates that notification of acceptance was received
Acceptance of Sale of GOODs / U.C.C.
[Unless otherwise unambiguously indicated]
- an offer to make a contract shall be construed as inviting acceptance in any manner and by any medium reasonable in the circumstances;
- an order (offer) to buy goods for prompt or current shipment shall be construed as inviting acceptance by either
i) Immediately Ships
ii) Immediately Sends Invoice
iii) Immediately Ships Non-Conforming Goods
~but~
such a shipment of non-conforming goods does not constitute an acceptance if the seller seasonably notifies the buyer that the shipment is offered only as an ACCOMMODATION to the buyer.
Inadvertent Acceptance
You Cannot accept an offer you don’t know about
Part Performance
Unless the offeror manifests a contrary intention,
– an offeree who learns of an offer after he has rendered part of the performance requested by the offer
may accept by completing the requested performance.
TIME when acceptance is effective - “Mailbox” Rule
When the acceptance letter is sent = That is the Day of acceptance
- -
1. Doesn’t matter if it gets there
2. Must be properly addressed and ordinary precautions taken
3. When improperly addressed, If it gets there at the time it would have anyway if properly addressed that’s OK / If not - then good upon receipt
“Mailbox” Rule for rejection or counter offer
If a Rejection (or counter-offer) is sent also – then it’s a race to receipt
RULE When are these contractual acts effective?
- Offer? =
- Revocation of offer? =
- Rejection of offer? =
- Counteroffer? =
- Acceptance? =
all receipt except acceptance ,,,,
Sometimes on dispatch and sometimes on receipt.
Acceptance by CONDUCT or SILENCE
a. If the offer is Ambiguous , then ____
a. acceptance is probably NOT GOOD as silence
Acceptance by silence
1) Offeror says silence is acceptable
2) Previous dealings indicate that silence is a reasonable form of acceptance
Acceptance by conduct
When you continue to take the benefit of the offer …. then it’s acceptance
TERMINATION of Offers
- 5 Ways offer Terminates Before Acceptance
- Expires by Passage of Time = if stated or reasonable
- Offeree Rejects it or Counter-Offers = which is treated as a Rejection
(a) If the counter offer is phrased as an “inquiry” then still may have a deal - Either Party dies or loses the legal capacity to enter into a contract
- The Non-occurrence of Any Condition of acceptance under the terms of the offer
- The Offeror Revokes it - Expressly or Indirectly
(a) Indirect Revocation ; When a “ the offeror takes definite action inconsistent with an intention to enter into the proposed contract
and
the offeree acquires reliable information to that effect.”
“Mirror Image Rule” -
To be accepted, acceptance has to match the offer exactly
“Last Shot Rule” [trying to avoid this]
Whoever send the last form wins, wins, wins the battle of the forms terms of agreement
Acceptance Rest 2-207 battle of the forms
a. A definite and seasonable expression of acceptance
b. Sent w/in a reasonable time
c. IS Acceptance
(1) Even though - it stated additional or different terms form the offer
(2) Unless acceptance is expressly made conditional to an assent to additional terms
Proposal for additional terms: Between Merchants -
terms DO Become Part of the Contract Unless…
1) Terms Materially Alter it
2) Notification of Objection to terms is given
BUT there must still be a definite and seasonable expression of acceptance.
AND If the terms the business people probably care about don’t match up (such as quantity, price, item), then there is no acceptance, even under Article 2. Instead, it’s a rejection and a counteroffer.
Proposal for additional terms:Between Citizen and Merchant
Not Part of contract unless expressly accepted by citizen
… CORE TERMS Must still be the Mirror Image
How can offers be made irrevocable - 4 ways
- Consideration
- Formalities
- Part Performance
- Reliance
Option Contract - when is acceptance of an options contract effective?
a. When acceptance is Received
b. So this becomes a modification of the “mailbox rule” we’ve talked about.
c. Option is an offer that is NOT revocable = it is a firm offer
Option contract …Consideration is Like a Mini-contract inside the bigger contract;
mini- agreement = given up right to revoke in exchange for 1 2 3 …
Option contract ..Formalities
a. R(2) 87(1): An offer is binding as an option contract if:
1) It is in writing,
2) Signed by the offeror,
3) Recites a consideration, and
4) Proposes an exchange on fair terms within a reasonable time.
Goods UCC 2-205 - w/o consideration is a firm offer
- elements necessary to satisfy / not revocable, for lack of consideration,
1) Do NOT Need if there is a consideration
2) W/o consideration it CAN be Binding IF:
i) Offer is by a Merchant
ii) In Writing (that says it will be held open)
iii) Signed
Timing = limited to not exceed 3 months if not stated
Offer acceptance by performance = .if performance started then …
it creates an options contract , acceptance when performance is completed
- Consider: What is mere preparation and what is performance ??
- *binding both parties
Offer is binding as an option contract to the extent necessary to avoid injustice when …
an offer which the offeror should reasonably expect to induce action or forbearance of a substantial character and which does induce such action or forbearance is binding
IS Promissory Estoppel is an “Option Contract”
Yes
When terms are vague
Intent + Reasonably Certain Basis ; to fill in the blanks
~~ . Terms are reasonably certain if provide a basis for determining the existence of a BREECH
SOF - goods contract terms writing must at least have ..
- Quantity **
1) Sale of goods $500+
2) NO price is OK if not in writing
3) Not enforceable above the limit stated in the agreement
- Quantity **
Statute of Frauds - analysis Questions to Ask
a. What is the Agreement?
b. Is it w/in the SOF?
c. Is there a writing ?
4 Agreements w/in the SOF
- Suretyship Agreement - guaranteeing someone else’s promise
- . Contract Not Performed w/in 1 year
- Contract for interest in land
- Contract for the sale of goods over $500
SOF - Contract Not Performed w/in 1 year / termination
Terminating an agreement is NOT completion and neither is escape from it
SOF - signature + writing
- Signed by the party who enforcement is sought against
2. Can be multiple writings that are tied together that clearly relate to the transaction
5 Exceptions to the SOF - not barred by the SOF but will still have to prove contract exists
- When contract not performable w/in a year and no writing (Oral Contract)
[Conduct indicates there was an agreement b/c they COMPLETED Performance, the other party can NOT assert the SOF] - Contracts for the sale of Land w/ Part Performance
i) Parties entered into a contract
ii) 1 Party partially performed / ex: Payment + Conduct / Meaningful Improvements to land + Possession
iii) Performance was induced by other party’s misrepresentations (including silence when witnessing the improvements)
iv) injustice can only be avoided by specific performance - Sales of Goods UCC 201-(2) Between Merchants of $500+ ) Excuses the buyer signature requirement where
i) Confirmation sent w/in reasonable time
ii) Signed by the Sender
iii) Buyer knows of the contents of the contract
iv) Buyer does NOT Object w/in 10 days - . Sale of Goods UCC 2-201-3(c) ~ Partial Performance
i) Payment made + Accepted
ii) Enforceable only up to amount of goods paid for - not full payment
~OR~
iii) Goods shipped and Accepted - Admissions / Exceptions UCC 2-2013(b) ~ Goods Rule - Admission of a contract by the party enforcement is sought against is enough but only for the quantity admitted, even w/o writing
4 modes of terminating an offer
- Time lapse / expire
- Offeror dies or incapacitated
- Rejected
- Revoked
Offer revoked implied
- Sold to someone else
2. Knowledge by the offeree
Counter offer treated as ____
A rejection
Knock out rule
When there is a battle of the forms - where terms differ or conflict (no agreement) then both sides’ terms are knocked out
Parole Evidence can be used to show …
Voidability - defenses
