Offer & Acceptance

Question 1

In order to create a contract, you must have

*

Answer 1

parties capable of forming a contract
consent
lawful object for contract
consideration

Question 2

Offer

Answer 2

manifestation of willingness to enter into a bargain made to justify to another person in understanding that assent to bargain is invited and will conclude it

Question 3

Assent

3

Answer 3

looks at the words and circumstances
to decide of a reasonable person would have understood
intent to be bound

Question 4

Certainty

4

Answer 4

looks at whether terms are reasonably complete
states requirements for breach
states nature of remedy for breach
leaves nothing unanswered

Question 5

For complete certainty in an oral agreement, must be able to

Answer 5

have Offeree say “I accept” and there be nothing at all left in question.

Question 6

Best defense for a CERTAINTY argument

Answer 6

PRELIMINARY NEGOTIATIONS which state an intent to put in writing.

Question 7

Good case for CERTAINTY defense in Oral Contract rebuttal

Answer 7

ROBERSON said each agreed upon clause is not a stand alone contract, especially when type of agreement is normally in writing, or too complicated to have only in oral form

negotiating with Scott, wanted phone call to be enforceable

Question 8

Communication of offer requires that

Answer 8

Offeree knows offer existed prior to accepting

example: advertisement or reward notice

Question 9

INTENT TO BE BOUND looks at

Answer 9

writing typically required/expected
level of detail, size
commonality of nature of agreement
full understanding of the terms

ROBERSON

Question 10

Offers can be _________ or _________.

Define each.

Answer 10

Express or Implied

Express is clearly stated in oral or written form

Implied is constructed from the actions and circumstances where a reasonable person would also conclude that contract exists

Question 11

Offers are interrupted by

Answer 11

death
incapacity
revocation
rejection
lapsed response time
mailbox rule conditions

Question 12

Acceptance is

Answer 12

manifestation of assent by Offeree
in manner required by offer
by performance (acting as a return promise) or
by promise (requiring all essential acts be completed)

Question 13

Acceptance can create two types of contract

Define

Answer 13

Unilateral - promise for performance

Bilateral - promise for promise

Question 14

Explain how partial performance works in each contract type

Answer 14

In UNILATERAL, part performance creates an irrevocable contract upon significant completion of the required task

In BILATERAL, part performance can create an irrevocable contract on instances of payment of deposit or temporarily under an option contract

Question 15

What do we look for to determine the type of contract at issue?

Answer 15

the behavior of the parties and the circumstances

Question 16

What is the court policy toward partial performance?

Answer 16

Court wants to encourage fairness in dealings, so will enforce when significant acts have occurred to effectuate the contract

Question 17

What are the acceptance requirements for an Arbitration Clause?

(5) & why

Answer 17

because an arbitration clause is a waiver of a constitutional right to a jury trial, acceptance must be made

voluntarily 
knowingly 
intelligently 
deliberately 
with full knowledge of consequences

Question 18

Give a case example for Arbitration Clause

Answer 18

Kortum-Managhan

Question 19

What are acceptance requirements for Adhesion Contract?

(8) & why

Answer 19

because this is acceptance by silence, the court must ensure that the terms are reasonably expected and not unduly oppressive, unconscionable, or against public policy.

1. no duress
2. change not hidden
3. terms not ambiguous or misleading
4. party with greater bargain power not abusing power
5. no undue external pressure on weaker party
6. change is signed and initialed (preferably)
7. weaker party had opportunity to obtain counsel
8. party with greater power cannot lull weaker party with promise not to enforce.

Question 20

What are acceptance requirements for silence as acceptance?

3 type

Answer 20

With History:
(1) show history of past dealings that show silence was permitted as acceptance

Without History:
(2) show party was examining product for sale and committed conversion act, is deemed contract to pay unless demanded payment is unreasonable.

(3) show party had knowledge of work, knowledge he would receive material benefit, and failed to state objection. passively accepting benefit establishes obligation to pay.

Question 21

Give a case for SILENCE AS ACCEPTANCE

Answer 21

Day v. Caton - building the wall

Question 22

Explain Mirror Image Rule.

Answer 22

acceptance of an offer must comply with the requirements of the offer as to the promise or performance deliverable.

Question 23

What are the ways that Power of Acceptance are Terminated?

5

Answer 23

(1) an Offeree’s power of acceptance may be terminated by
(a) rejection or counteroffer of Offeree
(b) lapse of time
(c) revocation by Offeror
(d) death or incapacity of a party

(2) Also by lack of any condition of acceptance required by the offer

Question 24

What has to be communicated and how to terminate an offer?

Answer 24

termination occurs when the Offeree receives reliable information that the offer is void, from Offeror or his agent, OR when Offeror takes definite action inconsistent with completing the offer.

Question 24

Made Irrevocable by

Answer 24

Partial Performance
(1) unilateral contract with significant completion
(2) bilateral contract with downpayment
Present Intent and Ability to pay in full (Dickinson)
Option Contract irrevocable until option time expires

Question 25

Rejection by

Answer 25

Communication

(1) clear and unambiguous (intent to consider is not rejection)
(2) actions clearly against intent to agree

Counteroffer

(1) same subject matter
(2) material change to offer is a substitute bargain
(3) can add clarifying terms reasonably expected

Question 26

Lapse of Time

Answer 26

(1) within express time set
(2) within reasonable time in line with circumstances and purpose of offer
(Loring v. City of Boston - arson)

Question 27

Mailbox Rule

Answer 27

acceptance occurs the moment the acceptance is placed in the mailbox (Morrison v. Thoelke)
(1) if sent prior to receipt of notice of revocation

Question 28

Exceptions to Mailbox Rule

Answer 28

(1) if Offeree first mailed rejection then changed their mind and mailed acceptance
(a) no contract if rejection received by Offeror first
(b) contract if acceptance received by Offeror first
(c) if both received at same time, Offeror chooses