Offer, Acceptance, Consideration Flashcards
Offer Defined
An offer is the manifestation of willingness to enter into a bargain, so made to justify another person in understanding that his assent to that bargain is invited and will conclude it, where the terms of the contract are reasonably certain that they provide a basis for determining the existence of a breach and for giving an appropriate remedy.
When an offer is not certain
a. Advertising: (Invitations to accept an offer) However, when the terms are definite enough they are an offer.
b. Rewards: (Invitation to accept an offer)
c. Price Quotations (Preliminary negations) They are not an offer unless there is a history between the parties, or the terms are specific enough.
d. Gap Fillers/Undefined Terms: Court may fill in the terms
Terminating the power of Acceptance
- Rejection by offeree (No or counter-offer)
- Revocation by offerer (Communicated to offeree directly or indirectly)
- Lapse of time (Reasonable time)
- Death or Incapacity
Irrevocable Offer
Common Law: Offeror may revoke contract at any time before completion of the contract. Unless offeree offers something to have valid consideration
Option Contract restatement: When an offeree begins performance in response to an offer for a unilateral contract, the offorer may not revoke the offer until the offeree has had a reasonable period of time to finish. (Writing or statute)
UCC 2-205 Firm Offer An offer by a merchant to buy or sell goods in a signed writing which by its terms gives assurance that it will be held open is not revocable, for lack of consideration, during the time stated or if no time is stated f_or a reasonable time_, but in no event may such period of irrevocability exceed three months; but any such term of assurance on a form supplied by the offeree must be separately signed by the offeror.
Acceptance Definition
(1) 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. When an offer is made the offeree gains the power of acceptance, which is the right to complete the process of mutual assent by saying yes to the offeror.
Must be definite, certain, and manifest the assenting party’s willingness to be bound by the terms, and be communicated to the other party.
Acceptance BiLateral
- part performance forms a K.
- In case of doubt as to manner of acceptance, the offeree chooses.
Was an offer accepted Unilateral
Invitation of Promise or Performance In case of doubt an offer is interpreted as inviting the offeree to accept either by promising to perform what the offer requests or by rendering the performance, as the offeree chooses.
Offeree is ivitated to choose 1) Where an offer invites an offeree to choose between acceptance by promise and acceptance by performance, the tender or beginning of the invited performance or a tender of a beginning of it is an acceptance by performance (2) Such an acceptance operates as a promise to render complete performance.
Defined Terms Common law
- Common Law Mirror Image (Exact Terms)
- Acceptance of an offer must be absolute, unconditional, and identical with the terms of the offer.
Manner of Acceptance Different Terms UCC
(Different Terms) (1) A definite and seasonable expression of acceptance or a written confirmation which is sent within a reasonable time operates as an acceptance even though it states terms additional to or different from those offered or agreed upon, unless acceptance is expressly made conditional on assent to the additional or different terms.
(2) The additional terms are to be construed as proposals for addition to the contract. Between merchants such terms become part of the contract unless:
(a) the offer expressly limits acceptance to the terms of the offer;
(b) they materially alter it; or
(c) Notification of objection to them has already been given or is given within a reasonable time after notice of them is received.
(3) Conduct by both parties which recognizes the existence of a contract is sufficient to establish a contract for sale although the writings of the parties do not otherwise establish a contract. In such case the terms of the particular contract consist of those terms on which the writings of the parties agree, together with any supplementary terms incorporated under any other provisions of this Act.
Undefined terms Acceptance Restatement
(1) An offer may invite or require acceptance to be made by an affirmative answer in words, or by performing or refraining from performing a specified act, or may empower the offeree to make a selection of terms in his acceptance.
(2) Unless otherwise indicated by the language or the circumstances, an offer invites acceptance in any manner and by any medium reasonable in the circumstances.
Undefined terms as to how to accept. UCC
Unless otherwise unambiguously indicated by the language or circumstances
- an offer to make a contract shall be construed as inviting acceptance in any manner and by any medium r_easonable in the circumstances_;
- an order or other offer to buy goods for prompt or current shipment shall be construed as inviting acceptance either by a prompt promise to ship or by the prompt or current shipment of conforming or non-conforming goods, but such a shipment of non-conforming goods does not constitute an acceptance if the seller seasonably notifies the buyer that the shipment is offered only as an accommodation to the buyer.
Conduct or Inaction Silence
Where an offeree fails to reply to an offer, his silence and inaction operate as an acceptance in the following cases only:
- Where an offeree t_akes the benefit of offered services with reasonable opportunity to reject them_ and reason to know that they were offered with the expectation of compensation.
- Where the offeror has s_tated or given the offeree reason to understand that assent may be manifested by silence or inaction_, and the offeree in remaining silent and inactive intends to accept the offer.
- There because of previous dealings or otherwise, it is reasonable that the offeree should notify the offeror if he does not intend to accept.
An offeree who does any act inconsistent with the offeror’s ownership of offered property is bound in accordance with the offered terms unless they are manifestly unreasonable. But if the act is wrongful as against the offeror it is an acceptance only if ratified by him.
Electronic Offer and Acceptance
a. Reasonable notice to the user the proposed agreement exists
b. Reasonable opportunity for the user to review the proposed terms of the agreement
c. Reasonable notice that a particular action will manifest the user’s intent
d. The user takes that action that manifests intent
Mailbox Rule
Acceptance takes place when an acceptance made in a manner and by a medium invited by an offer is operative and completes the manifestation of mutual assent as soon as put out of the offeree’s possession, without regard to whether it ever reaches the offeror. The dispatch of acceptance must be properly addressed to the offeror.
Mailbox Rule UCC
Where the beginning of a requested performance is a reasonable mode of acceptance an offeror who is not notified of acceptance within a reasonable time may treat the offer as having lapsed before acceptance.
