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Contracts > Offers > Flashcards

Offers Flashcards

1
Q

what is the key question for determining whether mutual assent occurred?

A

did words or conduct manifest a present intention to enter into a K?

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2
Q

what does a valid offer create? (3)

A

1) a power of acceptance in the offeree
2) a reasonable expectation in the offeree that the offeror is willing to enter into a K on the basis of the offered terms
3) a corresponding liability on the part of the offeror

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3
Q

what elements determine whether the offeree has a reasonable expectation as to an offer?

A

1) whether there was an expression of a promise/undertaking/commitment (objective standard)
2) whether there was certainty and definiteness in the essential terms
3) whether there was communication of the above to the offeree

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4
Q

is an invitation to negotiate an offer?

A

no

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5
Q

are ads generally treated as offers?

A

no

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6
Q

will an offer made in jest, anger, or by way of bragging be legally effective?

A

no (assuming it is reasonably understood to be a joke, etc)

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7
Q

when are an offer’s terms definite/certain?

A

when enough essential terms have been provided so that a K including them is capable of being enforced

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8
Q

generally, what terms must offers usually include to be deemed certain/definite?

A

1) offeree’s name
2) offer’s subject matter
3) price

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9
Q

what must an offer involving realty include in its terms to be deemed certain/definite?

A

1) identification of land with some particularity (though deed description not necessary)
2) price term
**NOTE = most courts will NOT supply a price term if it is missing

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10
Q

under the UCC (sale of goods K), what term must be included for the offer to be certain/definite?

A

the quantity term

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11
Q

when is a quantity term sufficient?

A

when the number is expressly provided or capable of being made certain

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12
Q

what is a requirement K?

A

K in which buyer promises to buy from a certain seller ALL of the goods the buyer REQUIRES and seller agrees to sell that amount to the buyer

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13
Q

what is an output K?

A

Ks in which seller promises to sell to a certain buyer all of the goods the seller PRODUCES and buyer agrees to buy that amount from the seller

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14
Q

what is the main limit on tenders/demands under requirement and output Ks?

A

there cannot be a tender/demand of quantity unreasonably disproportionate to…
1) any stated estimate OR
2) (in the absence of an estimate) any normal or comparable prior output or requirements

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15
Q

under what circumstances can a buyer validly increase requirements?

A

if the increase is in line with their prior demands OR done incrementally (so as not to be unreasonably disproportionate)

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16
Q

what must be included in service/employment Ks for its terms to be definite/certain?

A

1) nature of the work to be performed
2) duration of employment/work

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17
Q

what kind of K is created where the duration of employment is NOT specified?

A

a K terminable at the will of either party

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18
Q

when will missing terms NOT prevent the formation of a K? (ie–court will supply missing terms to make it enforceable)

A

when it appears that…
1) parties intended to make a contract
2) there’s a reasonably certain basis for giving a remedy

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19
Q

when can the court supply a price term to enforce a contract?

A

when the parties intended to form K w/o price being settled
**NOTE = court will NOT supply price term for Ks involving realty

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20
Q

under UCC, what price term will be supplied?

A

a reasonable price at the time of delivery

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21
Q

what term will be supplied if K doesn’t specify the time in which an act is to be performed?

A

performance within a reasonable time

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22
Q

does the reasonable term presumption extend to vague terms?

A

NO (only to missing terms)

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23
Q

how can uncertainty/vague terms be cured? (2 ways)

A

1) by part performance that clarifies the vague term OR
2) by acceptance of full performance

24
Q

will an offer be valid if a material term is vague, ambiguous, or agreed to be decided on later?

A

NO (under both UCC and CL)

25
Q

what must offeree have in order to have the power to accept?

A

knowledge of the offer (must be communicated to them prior to acceptance)

26
Q

what is termination by lapse of time? (offer)

A

offer will terminate if offeree does not accept within the specified time or within a reasonable time

27
Q

what is a “reasonable time” for purposes of offeree’s ability to accept?

A

depends on totality of the circumstances at the time the offer or attempted acceptance was made BUT if over a month between, it’s worth noting

28
Q

what is a rejection by counteroffer?

A

an offer made by the offeree to the OG offeror that contains the same subject matter as the first offer BUT differs in its terms (counteroffer that rejects OG offer)

29
Q

what is the difference between a mere inquiry/bargain and a counteroffer?

A

mere inquiry/bargain is NOT a rejection (offeree still keeping the OG proposal under consideration)
**KEY Q = would a reasonable person believe the OG offer has been rejected?

30
Q

is an acceptance made expressly conditional on the acceptance of new terms a valid acceptance of the OG offer?

A

NO (it’s essentially a new offer)

31
Q

how does an original offeror validly accept the offeree’s conditional acceptance (aka-new offer)?

A

only by expressly assenting to the new terms (CANNOT be accepted by performance)

32
Q

what happens if a party ships or accepts goods after a CONDITIONAL acceptance?

A

a K is formed by their conduct BUT the new terms are NOT included

33
Q

when is a rejection effective?

A

when received by the offeror

34
Q

does a rejection or counteroffer to an option K terminate the offer?

A

NO (offeree still free to accept the OG offer within the option period)

35
Q

under what circumstance is an offeree NOT free to accept an option when they’ve already rejected/countered?

A

when the offeror has detrimentally relied on the offeree’s rejection

36
Q

what party can revoke?

A

only the offeror

37
Q

when can an offeror revoke?

A

only before acceptance

38
Q

when does revocation happen indirectly?

A

when the offeree receives…
1) correct information
2) from a reliable source
3) of acts of the offeror that would indicate to a reasonable person that the offeror no longer wishes to make the offer (ie-changed their mind)

39
Q

when is revocation effective?

A

when received by the offeree

40
Q

when is a communication “received”?

A

when it is delivered to a place of business thru which the K was made OR another location AUTHORIZED to receive this type of communication
**NOTE = it does NOT matter whether the recipient actually reads the communication

41
Q

generally, can an offeror revoke their offer at will?

A

yes EVEN IF he has promised not to revoke for a certain period (w/o consideration)

42
Q

when can an offeror NOT revoke at will? (4 circumstances)

A

1) option Ks
2) merchant’s firm offer under article 2
3) detrimental reliance
4) beginning performance in response to true unilateral contract offer

43
Q

what is an option K?

A

a distinct contract in which the offeree gives consideration for a promise by the offeror to revoke

44
Q

what is a merchant’s firm offer? (UCC article 2)

A

if…
1) a merchant
2) offers to buy/sell goods in a signed writing
3) and the writing gives assurances that it will be held open,
the offer is NOT revocable for lack of consideration during the time stated (or if no time stated, for no longer than 3 months)

45
Q

what is a “signed” writing for purposes of a merchant’s firm offer?

A

anything that looks authenticated (ie-stationery)

46
Q

when is an offeror NOT allowed to revoke due to an offeree’s detrimental reliance?

A

1) when the offeree could reasonable expect that the offeree would rely to their detriment on the offer, AND
2) the offeree DOES so rely

47
Q

what happens to an offer that’s been (validly) detrimentally relied on by an offeree?

A

the offer will be held irrevocable as an option K for a reasonable length of time
**NOTE = sub/general contractor facts common here

48
Q

are bids offers?

A

yes

49
Q

when does an offer for a true unilateral contract become irrevocable?

A

once performance has begun (offeror must give offeree reasonable time to complete performance)

50
Q

is the offeree bound to complete performance under a unilateral contract?

A

NO (they may withdraw at any time prior to complete performance and there will be no acceptance)

51
Q

what effect does substantial preparation to perform have on unilateral contract offers?

A

will NOT make it irrevocable BUT could amount to detrimental reliance (ie-could recover from offeror to the extent of the reliance)

52
Q

what are the 3 events that will terminate an offer by operation of law?

A

1) death or insanity of either party
2) destruction of proposed K’s subject matter
3) supervening illegality

53
Q

will death terminate a contract?

A

no (only a REVOCABLE offer)

54
Q

will death terminate an irrevocable offer?

A

no (only REVOCABLE offers)

55
Q

who is a “merchant” for purposes of a merchant’s firm offer?

A

anyone operating any business

Contracts (10 decks)

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