Contract Formation - Modes of Acceptance Flashcards
Mirror Image Rule
Non Goods Contracts
Executory Contracts
If the offer and acceptance are not mirror images of each other, then there is no contract.
Last Shot Rule
Non Goods Contracts
Non Executory Contracts
The rules that govern are the last set of non-conforming rules provided
UCC 2-207(1)
Goods contract - new terms
(1) definite seasonable expression of acceptance OR written expression of acceptance in reasonable time = valid acceptance even if terms are additional or different UNLESS acceptance made expressly conditional on new terms
UCC 2-207(2)
(2) if #1 is met without the unless, then the contract is governed by the rules that they mutually agreed upon. The additional/different terms just become proposals.
However, if they are both merchants then the last shot rule applies unless
- the acceptance is expressly limited
- the contract is materially altered
- the offeree raised an objection right away
UCC 2-207(3)
Unless land from #1
(3) even if a contract is not made under #1 UNLESS rule, if both parties perform like there was a contract then there is a contract. The terms of the contract will be what both sides agree on. The terms that they do not agree on will be the default gap-filling rules.
CISG Article 19 - Common Law Approach
Mirror image rule unless the differences/additions are not material changes. Then it’s an acceptance unless the original offeror objects to the additional terms.
Ardente v. Horan
Yes we will pay that price for the house, but I want all the fixtures.
Mirror image rule
Step Saver Data Systems v. Wyse Technology ** Finish later
Box Top License Terms under UCC - was there conditional acceptance to waive implied warranties
3 tests for conditional acceptance:
1. Was there a material change?
2. Magic Words
3. Unwilling to proceed without new terms
ProCD v. Zeidenberg ** Finish Later
Shrink Wrap Box Top
These are valid conditional acceptances - Application of UCC 2-207(1)
Hill v. Gateway 2000
Terms in the box are enforceable when the consumer does not return the product within the specified time; court presumes consumer reviewed terms and chose to accept
Klocek v. Gateway
UCC 2-207 comment states that this section should be used where an oral agreement is reached and one or both of the parties sends a form memorializing the agreement and adds additional/different terms
Minority Rule: Where there is not a written offer but there is a written acceptance, Battle of the Forms rules.
Terms in the box are an offer that the consumer must expressly accept in order for the terms to be enforceable
Acceptance by performance - order of restatements
30
32
62
54
45
Restatement 30. Form of Acceptance invited
Offeror can permit or require acceptance by any means/medium she requests
Restatement 54. Acceptance by Performance; Necessity of Notification
An offeree accepting through performance may have to take reasonable steps to notify offeror - offeror discharges of duty unless (54)
EE uses reasonable diligence to notify of acceptance
R learned of performance within reasonable time
Offer indicates notification is not required
Restatement 62, Effect of Performance by Offeree where Offer Invites Either Performance of Promise
If they have the choice, the following are acceptance by performance: (62)
Tender of performance
Beginning performance
Or tendering to begin performance
Restatement 45. Option K Created by Part Performance of Tender
If an offer requires performative acceptance . . .
Promising performance does not substitute but
Beginning performance or tendering beginning creates and option contract for an offeree (45)
Restatement $32 Invitation of Promise or Performance
If not specified, offeror can accept in any reasonable manner (32)
White v. Corlies and Tiff
Office contractor
EE must appropriately show acceptance of an offer by performance before the parties will be bound
Carlil v. Carboloc Smoke Ball
Prevent the flu
Application of Rest. 30 and 54
Petterson v. Pattberg
Mortgage not paid in full - tried at the last minute
Any offer to enter into a unilateral contact may be withdrawn before act requested has been performed
Restatement 69(1). Acceptance by Silence
Acceptance by Silence is only acceptable when
- when E takes the benefit with reasonable time to object
- R gives E reason to understand that assent may be manifested by silence AND E intends for his silence to be an acceptance
- prior dealings would make it reasonable
Restatement 69(2). Acceptance by Silence
If E acts like they own something R offered to them, then that is seen as acceptance by silence on R’s terms, unless the terms are really unfair.
But if the way E acts towards R in respect to the property is improper, acceptance is only verified if R ratifies it later
