Mutual Assent: Offer and Acceptance Flashcards
(41 cards)
what standard governs whether mutual assent is present?
whether MA is present determined by objective standard; did words or conduct manifest a present intention to enter into a K?
what is offer?
Creates a power of acceptance in offeree and corresponding liability on part of the offeror.
must create a reasonable expectation in the offeree that offeror is willing to enter into a K on the basis of the offered terms.
in deciding whether communication create reasonable expectation ask:
- was there an expression of a promise, undertaking, or commitment to enter K?
- were there certainty and definiteness in essential terms?
- was there communication of the above to the offeree?
promise, undertaking, or commitment
there must be an intent to enter into a contract.
language
language used may show that offer was or was not intended.
surrounding circumstances
circumstances surrounding the language is considered by courts in determining whether an offer exists.
prior practice and relationship of the parties
determining whether certain remarks constitute an offer rather than preliminary negotiations, a court will look to the prior relationship and practice of the parties involved.
use of broad communications media
broader the communicating media the more likely courts think communication just solicitation of an offer.
advertisements, etc.
advertisements, catalogs, circular letters, and the like containing price quotations are usually construed as mere invitations for offers.
definite and certain terms
offer must be definite and certain in its terms. Basic inquiry whether enough of essential terms have been provided so that a K including them is capable of being enforced.
identification of the offeree
to be considered offer, statement must sufficiently identify the offeree or a class to which they belong to justify the inference that the offeror intended to create a power of acceptance
definiteness of subject matter
subject matter of deal must be certain.
real estate transactions requirements
land and price terms. most courts will not supply a missing price term for realty.
sale of goods requirements
quantity term
in a requirements contract, a buyer promises to buy from a certain seller all goods buyer requires, and the seller agrees to sell that amount to buyer.
in output contract, seller promises to sell to a certain buyer all goods that seller produces, and the buyer agrees to buy that amount from seller. assumed that parties will act in good faith, cannot be a tender or a demand for a quantity unreasonably disproportionate to (1) any stated estimate, or (2) in the absence of a stated estimate any normal or otherwise comparable prior output or requirements.
employment and other services requirements
duration of employment not specified the offer if accepted is construed as creating a contract terminable at the will of either party.
For other services, the nature of the work to be performed must be included in the offer.
what if missing terms?
one or more terms left open does not prevent formation if appears that parties intended to make a contract and there is a reasonably certain basis for giving a remedy. Courts can supply reasonable terms for the ones that are missing.
no price?
except property, the failure to state price doesn’t stop formation if parties intended. In sale of goods, article provides that price will be a reasonable price at the time of delivery.
no time?
if no time specification, law implies performance in reasonable time.
termination by lapse of time
offer can be ended by offeree’s failure to accept within time specified by offer or, if no deadline was specified, within a reasonable period.
express rejection
an express rejection is a statement by the offeree that they do not intend to accept the offer. such rejection will terminate the offer.
counteroffer as rejection
counteroffer is offer made by offere to offeror that contains same subject but differs in terms.
a counteroffer is BOTH a rejection and a new offer.
it terminates the original offer and reserves the roles of the parties.
distinguish - mere inquiry
an inquiry won’t terminate offer. test is whether a reasonable person would believe that original offer had been rejected.
conditional acceptance as rejection
when acceptance is made expressly conditional on acceptance of new terms, it is a rejection of the offer.
if parties ship or accept goods after a conditional acceptance, a K is formed by their conduct and the new terms are not included.
effective when received
rejection effective when received by offeror.
