Formation of Ks

Question 1

Ways to form K

Answer 1

express - words (oral or written)

implied in fact - conduct

Question 2

Bilateral K vs. unilateral

Answer 2

Bi - offer can be accepted in ANY REASONABLE WAY

uni - only by performing
look for :offer only be: or reward offer, otherwise it’s bi

Question 3

Offer

Answer 3

mainfestation of an intent to be bound (reasonable person standard)

ADVERTISEMENT - not an offer unless there is a quantity (exception if buyer is making the offer in Art 2)

Question 4

Methods of termination

Answer 4

lapse of time - an offer lapses after a stated term or a reasonable time has passed

revocation - offeror revokes the offer. Can occur any time before acceeptance
1.

rejection

death

Question 5

revocation

Answer 5

direct - directly communicate to offeree

indirect - engages in conduct that indicates she’s changed mind about offer and offeree is aware of the conduct

Question 6

Exceptions to revocation

Answer 6

1. option - must keep open until end of option
2. firm offer (art 2) - if a MERCHANT promises in a SIGNED WRITING to keep an OFFER OPEN, it’s irrevocable. (if essay look first option then firm offer)
3. foreseeable reliance before vs. after acceptance - you must accept offer before you rely unless it’s like a contractor getting offers from subs
4. starting performance for uni K - must be more than mere preparation

Question 7

Timing of revocation

Answer 7

A evocation is effective on receipt by the offeree (no mailbox rule). So if they acccept offer before they receive revocation, must be let out

Question 8

rejection

Answer 8

an “inappropriate response” e.g. counteroffer, conditional acceptances or add additional terms

Question 9

Counteroffer

Answer 9

operates as a rejection (distinguish from mere bargaining)
e.g. “I will only pay $490k” = counter offer
“Will you take $490k?” = not a counteroffer, so original offer is still open

Question 10

conditional acceptance

Answer 10

operates as rejection + counteroffer

CLAW - acceptance must mirror the offer. If offerree adds terms, it is a REJECTION

Art 2 - can add terms only if

1. both parties are MERCHANTS
2. not a MATERIAL change (if customary in industry, not material)
3. no objection within a REASONABLE TIME

Question 11

Death

Answer 11

either party before acceptance terminates a revocable offer

Question 12

Acceptance

Answer 12

Language of acceptance in offer controls manner of acceptance

bi - starting performance is acceptance

uni - starting perfroamcen is not acceptance only completing performacne is acceptance

Question 13

Improper Performance as acceptance

Answer 13

this is a simultaneous acceptance and breach.

Question 14

Accomodation

Answer 14

counter offer that’s not acceptance and it’s not a breach. Teh buyer has the choice to accept or reject

Question 15

Mailbox Rule

Answer 15

acceptance is effective when mailed

EXCEPTION -

offer states how and when you must accept offer

irrevocable offer / option -

rejection sent first, then acceptance -

Question 16

consideration

Answer 16

bargained for legal detriment (forberance or forbearing on a legal right) or benefit (performance or promise)

past consideration is not consideration (e.g. if yo do something, then other person promises to pay $300 later, they are not bound)

Question 17

Preexisting Duty Rule

Answer 17

NEW CONSIDERATION REQUIRED. Perfomring a pre=existing duty is not enough

Art 2 - consieration is not required to modify K for sale of goods. Must have good faith

partial payment of a debt that is due and undisputed =/= consideration (debt forgiveness)

A written promise to pay debt makes a binding obligation even if no consideration

Question 18

Promissory Estoppel as substitute for consideration

Answer 18

FOreseeable reliance may make a promise enforceable without consideration (

EXAM - if no consideration this is last ditch effort