Chapter 3: Defiteness, offer and acceptance Flashcards
what are the basic elements of an offer? Additional elements?
- Intention to create a legally bounding agreement
- sufficient agreement
Aditional elements? In common law : CAUSA and for Civil law: Consideration
The deftness of the contract?
agreement not treated as an agreement unless not basic elements have been agreed upon both parties
For example in French civil code: Price and object has to be established
When does a contract come into existence?
when the offerree consents to the offer made by the offeror
what does invitation to treat mean?
if requirements of an offer are not met - it enters in negotiations ( invitation to treat) .
What is the reasonable test and it it vague
when the language of Ann offer is not clear and maybe it is confundido con un invitation to treat, the reasonable test enters. It refers to see if a ‘reasonable person’ can infer that an offer has been made. It is vague because who established ‘reasonable’
what is termination of offer
when the offer ceases to exist
the 5 ways to terminate an offer
- Expiration of the time
- Rejection
- Counteroffer
- Revocation
- Withdrawal
Explain expiration of the time?
The offer finishes when the time established by the offeror for the offeree has extinguished
what happens if no fixed deadlines have been established? in terms of termination of an offer
- establish a ‘reasonable time’: the reasonable time depends upon 3 factors:
a. Type of communication
b. nature of the goods - perishable goods or not
c. price -fluctuate price or stagnant?
explain express rejection
the offer terminates when the offerree expresses its rejection
explain counteroffer?
offer terminates, but an offer is made by the offeree
explain revoke
when the offeror intends ti ve no longer bound by its offer
explain the different approaches to revocation of an offer
under German law - the offeror can’t revoke the offer before the deadline established for the offeree to accepts. He must wait for the deadline to expire to revoke the offer
Under English law - the offeror can revoke the offer, even before the deadline. Principle of CONSIDERATION - promise is binding ir the offeree also promises something in return. So as there is no consideration, the offer is not binding and can be revoked
Under German law: it is an intermediate. The offer can be revoked before the deadline, however the offeror has to pay compensation if any damage made to the offeree
Withdrawal of an offer?
retirada de la oferta. Takes place when the offer has not reached the offereee yet or at the same time. The withdrawal simply cancels the offer as it was never made
Concept of acceptance
The offeree accepts and offer made by the offeror. Contract is born
different ways of acceptance
writing, oral words, conduct made without words
Explain the prescribed method of acceptance
A way is prescribed method, where the offeror states in its offer how to accept that offer. e.g to accept this offer send me an email. normally, if the offer is accepted however not done as it specifically prescribed not valid. However it has some exceptions for example if the offeree accepts the offer however he does not follow the indications .. TU SBS LO QUIERO DECIR
Is silence sufficient to accept an offer? Exceptions?
normally, it is not sufficient - has to be accompanied by other actions
excepcional cases: previous negotiations. In French law that is called ‘Circumstantial silence’
what do all jurisdictions concur that a proposal to the public mounts to an offer
only when the offeree could reasonably believe that an offer has been made
under French law what is the approach to an advertisement?
under French law - an advertisement is seen as binding, the same as if that offer was made to a particular person EXCEPTIONS: cualidades personales: alquiler de casa, contratos laborales
under German and English law what is the approach to an advertisement
it is not seen as an offer, only as a mere invitation to treat. Invited customers to enter negotiations
what is the reason why FR and GER/BR take different approaches at policies? (advertisements)
Fr: it aims to protect the customer
GER/BR: aims to benefit the offeror and the seller, as they must decide if they want to negotiate or not
la dificultad del sistema de ingles / aleman en tema de anuncios
A veces, el anunciante puede querer estar obligado a su propuesta solo con la aceptación, sin necesidad de más negociación. Ejemplos típicos son la oferta de una recompensa por encontrar una mascota perdida. Si estas fueran solo invitaciones, no surgiría un contrato vinculante al encontrar la mascota. Es inherente a estas declaraciones que el anunciante busca quedar obligado ante posibles destinatarios
Under FR law, what does the law makes you do under promises of reward
if the conditions were fulfilled, the promisor must pay the reward as promised
