Page 7 Flashcards
An offer can only be accepted by who?
- The identified offeree, or
- Anyone in the general public with knowledge of the offer if it is a public offer
When is an acceptance effective?
On dispatch
What are the three major issues in figuring out whether an offer has been accepted?
- the KIND of acceptance
- whether SILENCE can be acceptance
- if the acceptance DEVIATES from the terms of the offer
Can an acceptance be ambiguous?
No, it must be unequivocal
What is UCC acceptance?
Acceptance can be by any medium reasonable under the circumstances
Is the UCC version of acceptance more or less flexible than common-law?
Much more flexible, they wanted to make it as easy as possible
What are all the different ways you can accept an offer under the UCC?
- promise
- performance
- conduct
- language
** basically anything works
Can an acceptance state terms additional to or different from those agreed on under UCC?
Yes, unless acceptance is expressly made conditional on assent to those different or additional terms
Can UCC acceptance diverge significantly on a dickered term?
No
How are counteroffers limited under the UCC?
They are limited to situations where the words of acceptance are expressly conditioned on a new or different time
What is an example of a counteroffer under the UCC?
“I will buy it, but only if you deliver it on Saturday”
What are things that indicate a counteroffer under the UCC?
Words like “but only if” or “on condition that” or “provided that”
If you say, “I will buy it, please deliver on Saturday,” is that a condition?
No, but it is a new or different term
Does the UCC like counteroffers?
No, new or different terms aren’t usually treated as counteroffers, instead the code looks for the language where the parties agreed and that will be the contract
How would the UCC treat the following statement? “I will buy it, please deliver on Saturday.”
A contract to buy the property, and delivery on Saturday is a new or different term that is treated differently depending on whether a merchant or non-merchant is involved
What are the differences between how to deal with a new/different term in an acceptance depending on whether you’re a merchant or non-merchant?
- non-merchant party rule: if either/both parties are not merchants, the new/different term is a proposal for addition to the contract and can be separately accepted/rejected and there will still be a contract
- merchants: new/different term automatically becomes part of the contract unless:
- the offer was limited to only its terms
- the offeror expressly rejects the new term
- the new term materially alters the contract
If someone says, “I will buy it for $10,000, please deliver it on Saturday” and the non-merchant party rule applies, what happens?
The new or different term of “please deliver on Saturday” is a proposal to the contract that the person can either agree or disagree to
What are the two different ways that you can accept under the UCC?
By agreeing or by just performing
If you order turkeys from a farmer, he can accept by doing what?
Shipping the proper turkeys, or by shipping the improper turkeys, because a contract is formed and immediately breached when the wrong ones get sent
What is the nonconforming goods exception under the UCC?
If a seller ships non-conforming goods as an accommodation to the buyer, that is not an acceptance, but a counteroffer, and doesn’t form a contract unless the person takes the item (then a contract has been formed for the other item).
Under common law, what must you pay attention to in order to determine if an offer has been accepted?
Whether it is bilateral or unilateral
Acceptance terminates the power of what?
Revocation as long as it was:
- timely
- in the proper form
- didn’t deviate from the offer
What is a warranty?
Offer in the box by the manufacturer that the purchaser can accept during the warranty period by bringing an action for breach
What is an express contract?
Mutual assent is explicitly manifested in oral or written words of agreement
What are the two types of implied contracts?
- Implied in fact
- Implied in law
What are the elements of acceptance?
- commitment
- communicated the right way using the correct method
- effective on dispatch
If an offer says how acceptance must be communicated, how must it be communicated?
That way, if it is sent by any other way, it is effective when received instead of when sent
If an offer is silent about the method of acceptance, how can you accept?
The same way the offer came, or any reasonable way that is as fast and as legally dependable as the original offer
If you get an offer in the mail, can you respond by a phone call?
No, because even though it is faster, it is not as legally dependable
How can you accept a unilateral offer?
Performance of an act
If an offer is unilateral, the offeree must do what before performance in order to constitute acceptance?
Learn of the offer
If an offeree begins performance of a unilateral offer, that obliges the offeror to do what?
To hold the offer open, but doesn’t oblige the offeree to complete, because he hasn’t promised to do anything
What is the exception to accepting a unilateral offer?
If the offeree has begun to perform, and he should know that his beginning is likely to become known to the offeror, and the offeror is likely to treat that as an implied promise to complete performance (especially true when failing to perform will make the offeror worse off than had he not begun)
If performance means transporting goods, and the offeror begins to transport, there’s an implied promise that what will happen?
He will not abandon the goods halfway
If an offeror relies on an implied promise, that might make the promise what?
Enforceable under the reliance principal
If a dad asks his daughter to come and take care of him for the rest of his life, that is an offer for what kind of contract?
Unilateral contract, because you’re bargaining for the daughter’s care, not promise
The traditional view is that an offeree doesn’t have to give notice of intent to perform if what?
The offeror is in a position to learn of performance with reasonable promptness and certitude. If that doesn’t happen, then he does have to give notice
Once an offeree begins performance of a unilateral offer, he is not required to notify the offeror after completion unless what?
Notice was expressly requested or the offeror wouldn’t discover within a reasonable time that performance had happened
Under the UCC, if you don’t notify the offeror that you have completed performance of a unilateral offer within a reasonable time, that allows the offeror to do what?
Treat the offer as having lapsed before acceptance
Once performance has begun, an offer can’t be revoked for what period of time? Why?
For a reasonable period to give the offeree the opportunity to complete performance
What is the general rule about a unilateral contract being formed?
It is formed when the offeree begins/completes performance, even if the offeror doesn’t immediately know that performance has started/been completed
What is acceptance?
- voluntary act of the offeree where he
- expresses assent to the terms of the offer
- in the manner invited or permitted by the offer
- that forms a binding contract
