Lecture 5 Flashcards
vending machine contract enviro
-no negotiations/documents
handshake contract enviro
negotiations/some or no docs
internet/amazon contract enviro
telephonic/comp. communication/standardized terms
standardized forms contract enviro
some or no negotiations-single sided forms
lawyer involved contract enviro
negotiations/custom docs
offer-proposal to contract requirements
- must manifest contractual intent
- must be definite and certain enough
- must be communicated to the offeree
- must be a mirror image offer
factors to consider equivalency to i offer
- words used
- actions taken
- circumstances
- how definite/certain
must be definite and certain
- must deal with major matters (id of parties, subject matter, time issues, price, etc)
- thorough -avoid gaps
- gap filling
gap filling
if court can reach fair/just result can gap fill if intent of contract is obvious (court will not make a contract if to indefinite)
to gap fill under common law, you must show that
- the parties intended to be bound to each other contractually
- there is a reasonably certain basis for filling the gap (some frame work/sensible way for court)
Uniform Commercial Code
only applies to sale of goods
- can be made in any manner sufficient t show agreement
- any agreement can be found even if the moment of its making is undetermined
- even w/ holes the contract holds parties intended to make a contract and there is a reasonably certain basis for giving an appropriate remedy
examples of gap filling rules under the UCC
2-305 Price
2-308 place for delivery
2-309 time
2-310 time for payment
output requirements for contracts
- was quantity established in good faith?
- quantity cannot be unreasonably disproportionate
acceptance
manifestation of assent to terms
- can be given by only offeree
- must be unequivocal (“i accept”)
- must be unconditional- no subject to counteroffers
mirror image offer
acceptance cannot change the offer-if changed its a counter offer
acceptance must be made…
expressly conditional
additional terms
need to know whether both parties are merchants before you can answer
additional terms (both are merchants)
additional terms are only proposals for additions to the contract and both parties must agree
additional terms (both are not merchants)
additional terms automatically become part of the contract unless they are excluded under certain conditions set forth in subsection 2-207
different terms-knockout rule
the conflicting terms are not included and you gap fill (WI does this, so we’ll do it for the class)
different terms options
- offeror’s term (dif. term) is binding
- deal with the dif. terms the same as additional terms under subsection 2
if both parties are merchants, additional terms are automatically become part of the contract unless…
- offer provided additional terms included in the acceptance would not be binding on the offeror
- the additional terms materially alter the contract
- the offeror objects to the additional terms within a reasonable period of time
silence _____ acceptance
DOES NOT EQUAL
expiration of a contract offer
term of offer is expressed, reasonable time has passed, death of offeror or offeree, destruction of subject matter upon learning of impossibility, rejection or counter offer, revocation by offeror
limitation of revocations of contract offers
option (requires consideration), firm offer (sale of goods only), acceptance by offeree
acceptance of a contract offer
language manifesting acceptance, unconditional and unequivocal language (no additions or differences), timely communicated (reasonable mode, not preceded by rejection/counteroffer), implied acceptance (conduct that manifests the above-deposit money)
What is the UCC
The Uniform Commercial Code
APPLIES ONLY TO SALE OF GOODS NOT REAL ESTATE OR EMPLOYMENT OR OTHER CONTRACTS
UCC 2-205
firm offer
- has the same effect on an option but does not require consideration
- offer by merchant, in writing and signed, is a promise to keep open and cannot be revoked until after stated date (if no date stated then reasonable time-3 months or less)
UCC 2-206
Offer for prompt or current shipment can be accepted either by express acceptance or by act of shipment
- if you ship and are non conforming its a breach of contract
- if you ship, non conform, but notify the party, its a counteroffer
UCC 2-207
changes the mirror image rule
- if the expression of acceptance is clear (definite and certain) you have a contract, even if it’s different or additional to the offer (it may be a material difference)
- if it is expressly conditional, then it’s a counteroffer, not an acceptance
terms of section 2-207 if a contract is formed
- if the offending terms are different, apply knock out rule (both parties terms are rejected) and use gap filling to apply a reasonable term
- if the offending term is additional, the proposal can be accepted or rejected
terms of section 2-207 if no contract is formed
if the expressions don’t form a contract, but the parties proceed as if they had a contract, then, it will be an implied contract and the terms will be those expressions agreed upon (throw out the rest) and apply gap filling to round out the rest
rejection by offeree
- rejection not valid until received by offeror
- counteroffer is implied rejection
- if rejected then accepted, whichever gets to offeror first wins
if the place of delivery is not stated…
the place of delivery is the seller’s place of business
is a counteroffer with inaction equaling acceptance valid?
no
stuff that the courts can always gap fill
time for payment, mode of payment, and when the parties are to perform
