Consent - Acceptance Flashcards
Acceptance - definition
An acceptance is a unilateral declaration of will made by the offeree in response to an offer
Acceptance - Prerequisites
Prerequisites—An acceptance must be declared or communicated, timely, made by the proper party.
(i) Declared—As we have discussed, communication of consent may be express, implied, or tacit. Tacit acceptance is generally exceptional, although sometimes the law presumes acceptance. See e.g., La. Civ. Code art. 1890 (acceptance of offer to remit debt presumed by law).
(ii) Timely—Acceptance must be made before an offer is revoked (if revocable) or expires.
(iii) Made by Proper Party—Generally, only the person to whom an offer is directed (or his representative) may accept the offer. When offers are made to the public, special rules apply (see below).
Express Acceptance - Revocable Offers
Revocable Offers—“Unless otherwise specified by the offer or the law, an acceptance of a revocable offer, made in a manner and by a medium suggested by the offer or in a reasonable manner and by a reasonable medium, is effective when transmitted by the offeree.” (La. Civ. Code art. 1935). “A medium or manner of acceptance is reasonable if it is the one used in making the offer or one customary in similar transactions at the time and place the offer is received, unless circumstances known to the offeree indicate otherwise.” (La. Civ. Code art. 1936) “…Unless otherwise specified in the offer, there need not be conformity between the manner in which the offer is made and the manner in which the acceptance is made.” (La. Civ. Code art. 1927)
Anaya makes a written offer to sell her car to Betty for $2,000. The offer is expressly revocable, and is set to expire on January 31. Betty sends a written acceptance by mail on January 30. It arrives in Anaya’s mailbox on February 1. Anaya reads the letter on February 2. Is there a contract? When was it formed?
Does your answer change if Betty’s “acceptance” was transmitted via carrier pigeon or some other less “reasonable” manner/medium of acceptance?
Express Acceptance - Irrevocable Offers
Irrevocable Offers—“Acceptance of an irrevocable offer is effective when received by the offeror.” (La. Civ. Code art. 1934) “A written revocation, rejection, or acceptance is received when it comes into the possession of the addressee or of a person authorized by him to receive it, or when it is deposited in a place the addressee has indicated is the place for this or similar communications to be deposited for him.” What is the rationale for this rule? Why does this rule differ from that of La. Civ. Code art. 1935? See La. Civ. Code art. 1935, cmt. (b).
Anaya makes a written offer to sell her car to Betty for $2,000. The offer is expressly irrevocable until January 31. Betty sends a written acceptance by mail on January 30. It arrives in Anaya’s mailbox on February 1. Anaya reads the letter on February 2. Is there a contract? When was it formed?
Acceptance by Performance
i. Performance Completed if Commenced—“When an offeror invites an offeree to accept by performance and, according to usage or the nature or terms of the contract, it is contemplated that performance will be completed if commenced, a contract is formed when the offeree begins the requested performance.” (La. Civ. Code art. 1939)
ii. Completed Performance—“When, according to usage or the nature of the contract, or its own terms, an offer made to a particular offeree can be accepted only by rendering a completed performance, the offeror cannot revoke the offer once the offeree has begun to perform, for the reasonable time necessary to complete the performance. The offeree, however, is not bound to complete the performance has begun. The offeror’s duty of performance is conditional on completion or tender of the requested performance.” (La. Civ. Code art. 1940).
iii. Notice of Commencement—“When commencement of the performance either constitutes acceptance or makes the offer irrevocable, the offeree must give prompt notice of that commencement unless the offeror knows or should know that the offeree has begun to perform. An offeree who fails to give the notice is liable for damages.” (La. Civ. Code art. 1941)
Acceptance through Silence
When, because of special circumstances, the offeree’s silence leads the offeror reasonably to believe that a contract has been formed, the offer is deemed accepted.” (La. Civ. Code art. 1942). Remember that acceptance through silence is exceptional.
Offers Made to the Public
(i) Offer of Reward—“An offer of a reward made to the public is binding upon the offeror even if the one who performs the requested act does not know of the offer.” (La. Civ. Code art. 1944)
(ii) Revocation of an offer of reward—“An offer of reward made to the public may be revoked before completion of the requested act, provided the revocation is made by the same or an equally effective means as the offer.” (La. Civ. Code art. 1945)
(iii) Performance by Several Persons—“Unless stipulated in the offer made to the public, or otherwise implied from the nature of the act, when several persons have performed the requested act, the reward belongs to the first one giving notice of his completion of performance to the offeror.” (La. Civ. Code art. 1946)
Content of the Acceptance
(e) Content
(i) General Rule—“An acceptance not in accordance with the terms of the offer is deemed to be a counteroffer.” (La. Civ. Code art. 1943)
Form Requirements - Imposed Solemnity
Imposed Solemnity—“…Unless the law prescribes a certain formality for an intended contract, offer and acceptance may be made orally, in writing, or by action or inaction that under the circumstances is clearly indicative of consent.” (La. Civ. Code art. 1927) When must the elements of consent (i.e., offer and acceptance) take a particular form?
Contracts with Form Requirements: Transfers of Immovable Property, Donation Inter Vivos, Matrimonial Agreement, and Certain Debts
(i) Transfers of Immovable Property—“A transfer of immovable property must be made by authentic act or by act under private signature. Nevertheless, an oral transfer is valid between the parties when the property has been actually delivered and the transferor recognizes the transfer when interrogated on oath.” (La. Civ. Code art. 1839) “A sale or promise of sale of an immovable must be made by authentic act or by act under private signature, except as provided by La. Civ. Code art. 1839.” (La. Civ. Code art. 2440). Note that a written contract is not required for a lease, even of an immovable. Do you understand why?
(ii) Donations inter vivos—“A donation inter vivos shall be made by authentic act under the penalty of absolute nullity, unless otherwise expressly permitted by law.” (La. Civ. Code art. 1541) “The donation inter vivos of a corporeal movable may also be made by delivery of the thing to the donee without any other formality.” (La. Civ. Code art. 1543)
(iii) Matrimonial Agreement—“A matrimonial agreement may be executed by the spouses before or during marriage. It shall be made by authentic act or by an act under private signature duly acknowledged by the spouses.” (La. Civ. Code art. 2331)
(iv) Certain Debts—“Parol evidence is inadmissible to establish either a promise to pay the debt of a third person or a promise to pay a debt extinguished by prescription.” (La. Civ. Code art. 1847)
The Required Forms of Written Acts
(c) Some Required Forms of Written Acts
(i) Act Under Private Signature—“An act under private signature need not be written by the parties, but it must be signed by them.” (La. Civ. Code art. 1837)
a. Signature of Both Parties—Does the law require that both parties sign the act, or may a written contract bind a party despite the failure of that party to sign the act? Read carefully La. Civ. Code art. 1837 comment (b). See also Milliman v. Peterman, noted case, p. 681.
b. Electronic Signatures—Under the Louisiana Electronic Transactions Act (La. RS 9:2601-2620), electronic signatures may satisfy signature requirements imposed by law. The Act applies, however, only to transactions between parties, each of which has agreed to conduct the transaction by electronic means.
This is sometimes known as a simple writing. Needs to be written (not necessarily by the parties), and signed by them. BUT under cmt. B, if it is signed by one party, but the non-signing party avails himself of the contract, it will still be enforceable.
(ii) Act Under Private Signature Duly Acknowledged—“…An act under private signature may be acknowledged by a party to that act by recognizing the signature as his own before a court, or before a notary public, or other officer authorized to perform that function, in the presence of two witnesses….” (La. Civ. Code art. 1836)
a. Distinguished from Authentic Act—How does an act under private signature duly acknowledged differ from an authentic act (described below)? Note the last sentence of La. Civ. Code art. 1836: “Nevertheless, an act under private signature, though acknowledged, cannot substitute for an authentic act when the law prescribes such an act.”
Signature is “acknowledged” before court, notary public, or other officer authorized to perform that function in the presence of two witnesses.
(iii) Authentic Act—“A. An authentic act is a writing executed before a notary public or other officer authorized to perform that function, in the presence of two witnesses, and signed by each party who executed it, each witness, and by each notary public before whom it was executed. The typed or handwritten name of each person shall be placed in a legible form immediately beneath the signature of each person signing the act.
B. To be an authentic act, the writing need not be executed at one time or place, or before the same notary public or in the presence of the same witnesses, provided that each party who executes it does so before a notary public or other officer authorized to perform that function, and in the presence of two witnesses, and each party, each witness, and each notary public signs it. The failure to include the typed or hand-printed name of each person signing the act shall not affect the validity or authenticity of the act. C. If a party is unable or does not know how to sign his name, the notary public shall cause him to affix his mark to the writing.” (La. Civ. Code art. 1833)
Zamjahn v. Zamjahn - Major principle from this case?
The act was signed by the donor in the presence of a notary and two witnessess; everyone signed the instrument
Later the donee signed the instrument in the presence of the notary and two witnesses; however the notary and witnessess did not sign again.
Acceptance was not made under authentic act. (at the time the donation and the acceptance needed to be in authentic form).
Zamjahn v. Zamjahn –> this case suggests that the notary must sign after the signatories, because it brings out the base idea of the notaries being witnesses to an act. If the sign an authentic act beforehand, they are attesting to something that has not happened yet. Many times the authentic act now has the notary signature last so that it looks “correct” and insures it against challenge.
Act that fails to be authentic
An act that fails to be authentic because of the lack of competence or capacity of the notary public, or because of a defect of form, may still be valid as an act under private signature.” (La. Civ. Code art. 1834)
Voluntary Solemnity
When, in the absence of a legal requirement, the parties have contemplated a certain form, it is presumed that they do not intend to be bound until the contract is executed in that form.”
Modification of Contractual agreements as to form.
Consider the following hypothetical: Danielle leases space in an office building from Evan for a term of one year at a rent of $1000/month. In a written lease agreement, Danielle and Evan agree that Danielle may renew the lease for another year at a rent of $1500/month. The written lease agreement requires that Danielle notify Evan of her intent to renew the lease in writing no later than 30 days prior to the expiration of the initial term. One week before the initial term ends, Danielle calls Evan and asks to renew the lease. Even agrees to the extension. Is the extension binding?
Maybe. It may depend on whether Evan acts as if the lease is binding, such as if he accepts the first months rent on the new lease.
the extension may be binding even though they already previously agreed to do this in writing because the louisiana law does not impose a formal requirement on this type of contract. This is litigated often in the context of leases.
