Restatements and U.C.C Codes

Question 1

Restatement 17

Requirement of a Bargain

Answer 1

1. Except for those stated in subsection 2, the formation of a contract requires a bargain in which there is a manifestation of mutual assent to the the exchange and a consideration.
2. the special rules applicable to formal contracts or those rules under 82-94, make it possible for there to be a contract whether or not there is a bargain, manifestation of mutual assent, or consideration

Question 1

Restatement 22

Mode of Assent: offer and acceptance

Answer 1

1. The manifestation of mutual assent to an exchange ordinarily takes the form of an offer or proposal by one party followed by an acceptance by another party or parties.
2. A manifestation of mutual assent may be made even though neither offer nor acceptance can be identified and even if the moment of formation cannot be determined.

Question 2

Restatement 24

Offer Defined

Answer 2

An offer is a manifestation of willingness to enter into a bargain, so as made to justify another person understanding that his assent to that bargain is invited and will conclude it.

Question 3

Restatement 50

Acceptance of an Offer

Answer 3

1. acceptance of an offer is a manifestation of assent to the terms thereof made by the offer in a manner invited or required by the offer
2. Acceptance by performance requires that at least part of what the offer requests is performed or tendered and includes acceptance by a performance which operates as a return promise
3. an acceptance by a promise requires that the offeree complete every act essential to the making of the promise.

Question 4

U.C.C. 204

Formation in General

Answer 4

1. a contract for sale of goods may be made in any manner to show agreement, including conduct by both parties which recognizes the existence of such a contract.
2. An agreement sufficient to constitute a contract for sale may be found even though the moment of its making is undetermined.
3. Even if one or more terms are left open a contract for sale does not fail for indefiniteness if the parties have intended to make a contract and there is a reasonably certain basis for giving remedy.

Question 5

Restatement 26: Preliminary Negotiations

Answer 5

A manifestation of willingness is not an offer if the person whom it is addressed to has reason to believe or knows that the person making it does not intend to conclude a bargain until further manifestation of assent.

Question 6

Restatement 27: Existence of a Contract where Written Memorial is in Contemplation

Answer 6

Manifestations of assent that are themselves sufficient to conclude a contract, it is not prevented from so just because there is a manifestation to prepare and adopt a written memorial thereof; but circumstances may show the agreements are preliminary negotiations.

Question 7

Restatement 30: Form of Acceptance Invited

Answer 7

1. offer may invite or require acceptance to be made by an affirmative answer in words, or by engaging in or refraining from certain acts, or may empower offeree to make a selection of terms in his acceptance.
2. Unless indicated otherwise, an offer invites acceptance by any manner or any medium reasonable in the circumstances.

Question 8

Restatement 32: Invitation of Promise or Performance

Answer 8

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.

Question 9

Restatement 45: Option Contract created by Part Performance of Tender.

Answer 9

Where an offer invites offeree to accept by rendering a performance without promissory acceptance, an option contract is created when the offeree tender or begins the invited performance or tenders a beginning of it.

Question 10

Restatement 51: effect of part performance without knowledge of offer

Answer 10

Unless the offeror manifests a contrary intention, an offeree who learns of an offer after he has rendered part of the performance requested by the offer may accept by completing the requested performance.

Question 11

Restatement 60: Restatement of Offer which states Time, Place, or Manner of Acceptance

Answer 11

If an offer prescribes a specific place, time, or manner of acceptance of its terms, in this respect must be followed with in order to create a contact. If merely suggested, then another manner of acceptance is not precluded.

Question 12

Restatement 62: Effect of performance by offeree where the offer invites either Performance or Promise.

Answer 12

Where an offer an offeree to choose between promise and acceptance by performance, the tender or beginning or the invited performance or a tender of a beginning of it is an acceptance by performance.

Such an acceptance operates as a promise to render complete performance.

Question 13

Restatement 64: Acceptance by telephone to teletype

Answer 13

Acceptance given by telephone or other medium of substantially instantaneous two-way communications governed by principles applicable to acceptances where the parties are in the presence of each other.

Question 14

Restatement 65: Reasonableness of Medium of Acceptance

Answer 14

Unless circumstances known to the offeree indicate otherwise, a medium of acceptance is reasonable if it is the one used by the offeror or one customary in similar transactions at the time and place the offer is received.

Question 15

Restatement 69: Acceptance by silence or exercise of dominion

Answer 15

1. Where an offeree fails to reply to an offer, his silence or inaction operate as an acceptance in the following.a. where an offeree takes the benefit of offered services with reasonable opportunity with reasonable opportunity to reject them and reason to know that they were offered with the expectation of compensation.

b.where the offeror has has stated 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.

c. where because of previous dealings or otherwise it is reasonable that the offeree should notify the offeror if he does not intend to accept

d. 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 it is an acceptance only ratified by him.

Question 16

Restatement 36: Methods of Termination of the Power of Acceptance

Answer 16

An offer’s power of acceptance may be terminated in the following ways:

a. rejection or counter-offer by the offeree
b. lapse of time
c. revocation by the offeror
d. death or incapacity of the offeror or offeree.

2. an offeree’s power of acceptance is terminated by the non-occurence of any condition of acceptance under the terms of acceptance.

Question 17

Restatement 37: Termination of Power of Acceptance Under Option Contract

Answer 17

The power of acceptance is not terminated by rejection or counteroffer, revocation, or by death or incapacity of the offeror, unless the requirements are met for the discharge of contractual duty.

Question 18

Restatement 38: Rejection

(offeree one)

Answer 18

a. An offerree’s power of intention is terminated by his rejection of the offer, unless the offeror has manifested a contrary intention.

b. a manifestation of intention not to accept is a rejection unless the offeree manifests an intention to take it under further advertisement.

Question 19

Restatement 39: Counter-offers

Answer 19

1. A counter-offer is an offer made by an offeree to his offeror relating to the same matter as the original offer and proposing a substituted bargain differing from that proposed by the original offer.
2. An offerrees power of acceptance is terminated by counter-offer unless the offeror has manifested a contrary intention and unless the counter offer manifests a contrary intention of the offeree.

(a counter offer must be capable of being accepted)

A qualified or conditional acceptance is a counter offer, but requests for a better offer, mere inquiry into different terms that are in tandem with an unconditional acceptance, are not counter-offers.

Question 20

Restatement 40: Time when Rejection or Counter-Offer Terminates the Power of Acceptance (mail or telegram one)

Answer 20

Rejection or counter-offer by mail or telegram does not terminate the power of acceptance until received by the offeror, but limits the power so that the letter of telegram of acceptance started after the sending of an otherwise effective rejection or counter-offer is only a counter-offer unless the acceptance is received by the offeror before he receives the rejection or counter-offer.

Question 21

Restatement 41: Lapse of Time

Answer 21

1. .An offer’s power of acceptance is terminated at time specified in the offer, or if no time is specified, at a reasonable time
2. what a reasonable time is a question of fact, depending on all the circumstances existing when the offer and attempted acceptance are made
3. unless otherwise indicated by the language or the circumstances, an offer sent by mail is seasonably accepted if an accepted if an acceptance is mailed at anytime before midnight on the day of which the offer is received.

Question 22

Restatement 42: Revocation by communication from offeror received by the offeree

Answer 22

an offeree’s power of acceptance is terminated when the offeree receives from the offeror a manifestation of an intention not to enter into the proposed contract.

Question 23

Restatement 43: indirect communication of revocation

Answer 23

an offeree’s power of acceptance is terminated when the offeror takes definite action inconsistent with an intention to enter into the proposed contract and the offered requires reliable information to that effect.

Question 24

Restatement 48: Death or Incapacity of Offeror or Offeree

Answer 24

The offeree's power of acceptance is terminated when the offeree or offeror dies or is deprived of legal capacity to enter into the proposed contract.

Question 25

Restatement 63: Time when Acceptance Takes Effect

Answer 25

Unless the offer provides otherwise: 1. An acceptance made in the manner and by a medium invited by an offer is operative and completes the manifestation of mutual assent as soon as put put of the offeree's possession, without regard to whether it ever reaches the offeror; but 2. an acceptance under an option contract is not operative until received by the offeror. (after mailing a telegraph or mail, an offeree can't simply retrieve the mail and say that the acceptance is revoked... as long as it was dispatched, the acceptance power is still there)

Question 26

Restatement 66: Acceptance Must be Properly Dispatched (distance one)

Answer 26

An acceptance sent by mail or otherwise sent from a distance is not operative upon dispatch unless precautions are ordinarily observed to insure safe transmission of similar messages.

Question 27

Restatement 67: Effect of Receipt of Acceptance Improperly Dispatched

Answer 27

Where an acceptance is seasonably dispatched but the offeree, but uses a means that is not invited by the offeree or fails to exercise reasonable diligence to insure safe transmission, it is treated as operative upon dispatch if received within the time in which a properly dispatched acceptance would normally have arrived.

Question 28

2-205

Answer 28

Requirements: 1. An offer Applicable terms of an offer. 2. By a merchant 3. To sell goods in a signed recording which by its terms gives assurance that it will be held open, and is not revocable for lack of consideration 4. During the time stated, or if no time is stated, a reasonable time, but no more than 3 months a. Any term offered by the offeree must be signed on a form supplied by the offeree

Question 29

2-204

Answer 29

1. A contract for a sale of goods May be made in any manner sufficient to show agreement Includes conduct of both parties which recognizes the existence of such a contract . 2. An agreement sufficient to contract for sale (agreement between seller and buyer) may be found even though the moment of its making is undecided. 3. Even if one or more terms are left open in a contract for sale, Such contract does not fail for indefiniteness if Parties have intended to make a contract. And there is a reasonably certain basis for giving an appropriate remedy.

Question 30

2-206

Answer 30

1. Unless otherwise unambiguously indicated by the language or circumstances. 2. An offer to make a contract shall be construed as inviting acceptance in any manner and by any medium reasonable in the circumstances. 3. An order to or offer to buy goods for prompt and current shipment as inviting acceptance by: a. The prompt or current shipment of the conforming goods or non-goods i) Exception: shipment of non-goods is not an acceptance if the seller seasonably notifies the buyer only an accommodation to the buyer 3. Where the beginning of a requested performance is a reasonable mode of acceptance, the offeror who is not notified of acceptance within a reasonable time, may treat an offer as having lapsed before acceptance.

Question 31

2-207 Additional Terms in Acceptance or Confirmation

Answer 31

1. A definite and seasonable expression of acceptance or a written confirmation which is within a reasonable time Even though it states terms additional to those different from those offered or agreed upon i)UNLESS acceptance is expressly made conditional on assent to the additional or different terms. 2. Additional terms are to be construed as proposals for addition to contract. Between merchants such terms become part of the contract unless i) Offer expressly limits acceptance to the terms of the offer ii)They materially alter it iii) Notification of objection to them is given and is given in a reasonable manner after notice of them is given 3.Conduct by both parties which recognizes the existence of a contract is sufficient to establish a contract for sale, although writings do not establish a contract. In such a case, a contract consists of those terms on which writings of the parties agree, together with any supplementary terms incorporated under any other provisions of this Act.

Question 32

Restatement 90: Promise Reasonably Inducing Action or Forbearance (R2D 90)

Answer 32

1. A promise which the promisor should reasonably expect to induce action and forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise. The remedy granted for breach may be limited as justice requires. 2. A charitable subscription or a marriage settlement is binding under (1) without proof that the promise induced action or forbearance.