Mutual Assent

Question 1

What is another term for Mutual Assent?

Answer 1

“Meeting of the Minds”

Question 2

What is Manifestation Intent/Assent?

Answer 2

Objective manifestation of behavior based on the reasonable person standard

Question 3

What is Objective Manifestation of Behavior?

Answer 3

When courts look to the outward expression (actions/speaking) of an individual in determining if they manifested an intent to contract

Secret intent, or intent in the mind, is irrelevant

Question 4

What is the seminal case for mutual assent, and specifically, the concept that “secret” intent is irrelevant?

Answer 4

Lucy v. Zehmer
(guy “jokingly” contracts to sell his farm, court finds objective manifestation of behavior was enough to satisfy mutual assent)

Question 5

What is the Reasonable Person Standard with respect to mutual assent?

Answer 5

Would an objective, reasonable, third party witnessing a situation between the parties determine from their behavior that the parties demonstrated that they wanted to enter a contract?

Question 6

What are the 3 types of contracts?

Answer 6

1. Express/Explicit
2. Implied in Fact
3. Implied in Law

Question 7

What two elements are necessary for there to be an express/explicit contract?

Answer 7

Offer and Acceptance

Question 8

What is an Offer?

Answer 8

A clear, definite, and explicit statement that is an offer to contract

Question 9

If something is not clear, definite, or explicit, what is it, if not an offer?

Answer 9

An invitation

Question 10

What seminal case demonstrates an offer needing to be clear, definite, and explicit?

Answer 10

Lefkowitz v. Greater Minneapolis Surplus

guy shows up to buy fur coat for $1 because it was advertised in the paper; they hit him with the bait & switch

Question 11

Can an invitation be accepted?

Answer 11

No; if it’s not clear, definite, or explicit, it’s just an invitation, not an offer, and cannot be accepted

Question 12

What are preliminary negotiations and what case demonstrates this?

Answer 12

The discussions that precede an offer and are not prepared to be accepted

PFT Roberson v. Volvo Trucks

Question 13

What is Acceptance?

Answer 13

The moment the offeree accepts the offer

Question 14

Other than explicit/verbal acceptance, how can an offeree accept an offer?

Answer 14

1. Performance (party begins to perform on their end of the contract as proposed)
2. Silence as Acceptance (party accepts a contract when they’re silent)
3. Use of software/shrinkwrap acceptance (user utilizes software and accepts all terms)

Question 15

Which case demonstrates that performance on a contract is acceptance?

Answer 15

Fujimoto v. Rio Grande
(employees are upset about their payment, then they contract with employer that they’ll get a raise later, and don’t return the contract signed but begin to perform on the contract)

Question 16

What is the general rule regarding silence as acceptance?

Answer 16

Silence is NOT acceptance

Question 17

If the general rule of Silence as Acceptance is that silence is NOT acceptance, what are the 3 exceptions?

Answer 17

1. When the offeree takes the benefits of services they had reasonable time to reject
2. When the offeror has stated explicitly that they would accept silence as acceptance
3. When it’s reasonable to assume that an uninterested offeree would notify the offeror that they decline the offer

Question 18

What is the seminal case about shrinkwrap acceptance?

Answer 18

ProCd Inc. v. Zeidenberg
(by using the ProCD software, the guy was accepting the terms of the contract within the shrinkwrap; people accept terms after receiving the product all the time)

Question 19

What is the acronym for terminating an offer, and what do they stand for?

Answer 19

L.I.R.R.

Lapse of Time
Incapacity/Death
Revocation
Rejection

Question 20

What two conditions establish that a lapse of time terminated an offer?

Answer 20

When so much time has passed that an offer can be considered “expired” without ever having to formally revoke the offer

And when an offer doesn’t explicitly state a length of time it’s open (the assumption is a reasonable amount of time)

Question 21

What is the general rule of revocation and which case demonstrates this?

Answer 21

An offeror can revoke their offer at any time prior to acceptance (Dickinson v. Dodds)

Question 22

Which case illustrates that lapse of time can revoke an offer?

Answer 22

Loring v. City of Boston
(City offered a reward to help catch arsonists, but it expired after several years; plaintiffs can’t recover years later)

Question 23

What are the three exceptions to the general rule of revocation (that an offeror can revoke their offer at any point prior to acceptance)?

Answer 23

1. Options Contract
2. Firm Offer Rule (UCC)
3. Partial Performance

Question 24

What is an options contract?

Answer 24

When the offeree gives separate consideration to keep the offeror from revoking the offer and leaving it open for the entirety of a certain amount of time

Question 25

What is the firm offer rule and which provision of UCC is it?

Answer 25

When a merchant is selling goods, a separate signed writing can guarantee that an offer from the merchant will not be revoked for a reasonable amount of time (not to exceed 60 days)

§ 2-205

Question 26

The Firm Offer Rule is limited to three specific things needed for it to exist. What are they?

Answer 26

1. Goods
2. Must be between merchants
3. Must be a separate SIGNED writing

Question 27

What is the rule surrounding partial performance and revocation?

Answer 27

An offeror can’t revoke an offer when the offeree has already begun to meaningfully perform on the offer

Question 28

What is the general rule about Rejection?

Answer 28

Once you accept, you can’t turn around and reject, and once you reject, you can’t turn around and accept

Question 29

When an offeree rejects an offer, the original offer is gone unless:

Answer 29

The offeror gives a counteroffer (a new proposed offer)

Question 30

What two things need to happen for an offeree to keep an offer open without actually rejecting it?

Answer 30

1. They say they’re not rejecting the offer and will think about it
2. They must inquire as to if they would consider alternative terms

Question 31

Is the Mirror Image Rule common law or the UCC?

Answer 31

Common Law

Question 32

What is the Mirror Image Rule and which case illustrates it?

Answer 32

If the response to an offer is not the mirror image of the offer, it’s a counteroffer

Princess v. GE
(GE’s counteroffer was binding because Princess didn’t reject their counteroffer and permitted the work to begin after receiving their terms)

Question 33

What is the Mailbox Rule and which case illustrates it?

Answer 33

Manifestation of acceptance occurs once the acceptance is put in the mailbox and sent to the offeror

Morrison v. Thoelke
(Couple contracts to sell property from FL, once couple from TX put it in the mail, that was acceptance and they can’t revoke at that point)

Question 34

What is indefiniteness?

Answer 34

Vagueness/uncertainty will void a contract unless the parties behave as if they have a contract

Question 35

Math formulas are sufficiently definite to resolve what? And which case illustrates this?

Answer 35

To resolve indefiniteness

Rego v. Decker (couple with lease to own agreement had a math formula to calculate the rent)

Question 36

What UCC section is the Battle of the Forms?

Answer 36

§ 2-207: Replaces Common Law Mirror Image Rule

Question 37

What are the 3 major rules in the Battle of the Forms? (E.D/D.C.)

Answer 37

1. You don’t have acceptance unless the party that makes the offer explicitly says that acceptance is conditional on their terms
2. Mirror image rule is out of the window unless the offeror has language that says they have to accept the different terms; party 2 who sends counteroffer determines the new terms unless 3 things
3. Conduct can establish the existence of a contract even when writings don’t

Question 38

If there’s a Battle of the Forms and 2-207(2) does not apply, courts will (SALD)

Answer 38

Strike disagreements between the two contracts
Adopt the terms both sides agree on
Look at past course of dealings between parties and common use in the industry
Default terms from the UCC will then be used

Question 39

Who does 2-207 apply to?

Answer 39

Only to merchants

Question 40

Which section of 2-207 typically applies most of the time?

Answer 40

Section 3 (Conduct/course of dealing can establish the existence of a contract even when writings don’t)

Question 41

This case illustrates the “modern shrink wrap” (software acceptance)

Answer 41

Meyer v. Uber

Question 42

This case illustrates when a contract is Applied in Fact

Answer 42

Stepp v. Freeman

lottery ticket case, guy gets mad at coworker

Question 43

What are the other 2 cases that demonstrates “Battle of the Forms”?

Answer 43

Kolek v. Gateway (guy buys a computer and claims arbitration clause didn’t apply to him)

Commerce v. Bayer (form 1 had no arbitration clause, form 2 had one, caused conflict)