Formation of the offer

Question 1

Requirements for a traditional, enforceable contract

Answer 1

MCDS - My Cats Do Sneak

M - Mutual assent (offer and acceptance)
C - Consideration
D - Defenses which could invalidate
S - Statute of Frauds

Question 2

Contract definition

Answer 2

An agreement between parties creating mutual obligations enforceable by law.

Question 3

UCC or common law analysis approach

Mixed K?
Installment K?

Answer 3

UCC = Movable goods

CL = Services, real estate (or anything not UCC)

Mixed contract - Must be one or the other. If mixed or both, apply Predominant Purpose Test (PPT).

Installment/divisible contract - Treat each as a separate contract and apply PPT.

Question 4

Offer requirements under UCC and CL

Answer 4

ACS = Let me ACS you a question:

A - A manifestation of willingness which
C - Creates the power of acceptance and
S - Specifies all necessary terms of the deal

An offer is (1) an outward manifestation of present contractual intent, (2) with certain and definite terms, (3) communicated to an identified offeree.

UCC = SQI - Subject, Quantity, Identity of parties

Price not required under UCC §2-305

Note: Requirements or Output contracts negate price requirement.

CL = SQIP - Subject, Quantity, Identity of parties, Price

Question 5

Statute of Frauds (contracts subject to)

Answer 5

MOUSER

Marriage
One-year (cannot be performed within one year)
UCC goods contracts for $500+
Suretyship (3 party where one guarantees debt of another should they default)
Executor/administrator of an estate (promising to pay a debt of the estate personally)
Realty

Note that in a combined contract for services and the sale of goods, SoF applies only if the primary purpose of the contract was for the sale of goods and services were incidental. Otherwise, common law applies (one-year provision could still fall under SoF).

Note that partial performance negates the requirement.

Question 6

Requirements of a writing (SoF) - UCC vs. common law

Answer 6

UCC = SQIS (same as offer, except adding S for Signature).

Subject matter (including promises (and by/to whom) / Quantity of Goods / Identity of parties / Signature of the party to be charged
------------------
CL = SQIPS

Common law: Subject matter (including promises, terms with reasonable clarity) / Quantity / Identity of parties / Price / Signature of the party to be charged

Question 7

Acceptance definition

Answer 7

An unconditional and unequivocal assent to an offer.

May be accepted at any time before revocation (R2 §41 - e.g., woman selling ticket to friend, event 6 months away, could accept any time before revocation)

More formally:

Acceptance of an offer is a manifestation of assent to the terms thereof made by the offeree in a manner invited or required by the offer. Restatement 2nd §50(1).

Establishes MUTUAL ASSENT. Can be IMPLIED through conduct or common practices (doctor’s visit = implied contract)

Question 8

Termination of an offer

definition

elements

Answer 8

Termination of an offer ends the power of the offeror to accept and can only be terminated prior to the offeree accepting it.

Can be TERminated because it LaCCD:

T - Time (R2 §41 reasonable time, factual issue)
E - Express revocation
R - Rejection
L - Law
C - Constructive revocation
C - Counteroffer
D - Death (or incapacity)

Question 9

Which offers are irrevocable?

Answer 9

OPU - oh pu, now it’s irrevocable

Option K
Performance Unilateral contract
UCC firm Offer

Question 10

Mailbox rule and exceptions

Answer 10

Acceptance of an offer is effective upon dispatch.

Exceptions:

WROST

1. Sent to wrong address or incorrect postage?
2. Offeror stipulate that mailbox rule does not apply?
3. Option contract?
4. Offeree send termination letter before acceptance?
5. Detrimental reliance of termination?

If any apply, then effective upon RECEIPT and mailbox rule is invalidated.

Question 11

Acceptance or counteroffer?

CL vs UCC

Answer 11

CL - Mirror Image Rule - acceptance must match offer

UCC - terms govern unless material or non-merchant, then gap fillers

Question 12

Offer

Answer 12

A promise from one party in exchange for another’s performance or return promise.

More formally:

An offer is 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. Restatement 2nd §24.

Question 13

Satisfying SoF for UCC goods contracts

Answer 13

PAWS (§2-201)

P - Performance
A - Admission in court
W - Written confirmation between Merchants
S - Specially manufactured goods

Question 14

Silence as acceptance when

Answer 14

1. Intention of parties
2. Prior dealings = reasonable to expect rejection
3. Offeree exercises DOMINION over offered property
4. Offeree RECEIVES BENEFIT of services (after opportunity to reject).

Question 15

UCC both parties merchants - what happens to different vs additional terms?

Answer 15

Different = gap filler

Additional = part of K unless material, then knockout and gap filler

Question 16

Mailbox rule can still apply with wrong address if

Answer 16

Letter still arrives timely (e.g., postman notices wrong address and delivers to the correct address).

Question 17

UCC both parties merchants - what happens to ADDITIONAL terms?

Answer 17

They govern unless:

1. Offer expressly limits
2. Materially alter
3. Offeror objects reasonable time

Question 18

UCC either party not merchant - what happens to ADDITIONAL terms?

Answer 18

The do NOT govern and GAP fillers apply

Question 19

UCC - DIFFERENT terms - what rule applies?

Answer 19

Knock-out rule applies → GAP fillers

Question 20

UCC firm offer requirements and effective period

Answer 20

Writing to Hold open
Signed by merchant
not to exceed 90 days

No consideration required