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What is an offer?
It can be defined as a manifestation to another of assent to enter into a
contract if the other manifests asset in return by some action, often by a
promise (bilateral contract) but sometimes a performance (unilateral
contract). This offer is nearly always a promise, and the action on which the
offeror conditions the promise is the “price” of its becoming enforceable.
Offer is the name given to a promise that is conditional on some action by
the promisee if the legal effect of the promisee’s taking that action is to
make the promise enforceable.
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The Third Element
The third element to determine whether an expression in fact is an offer is
whether an expression in fact is an offer is whether it was communicated to
the offeree. In fact, failure of the offeror to communicate the offer to the
offeree may indicate that no offer exists in the circumstances. Furthermore,
an offer only creates the power of acceptance in the offeree and not in other
third parties.
An offer must be communicated to the offeree in order to be an offer.
Acceptance
Because the offeror is the master of the offer, the offer may be restricted to
a form of acceptance dictated in the offer. Thus, the form of manifestation of
assent by the offeree may be restricted by the offer.
In determining whether an acceptance has been made you use the objective
standard:
(1) Would a reasonable person in the offeror’s shoes assume there has
been acceptance? Even when the offeree didn’t in fact know
of the offer or intend to accept it.
Acceptance Generally:
An acceptance is merely the offeree’s manifestation of assent to the terms of
the offer stated by the offeree.
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(3)Must occur while the offer is still open.
Advertisements
Sometimes an offer may be directed to a group of persons, perhaps even to
an unlimited number of persons, such as the public. Who can accept is
determined by the terms of the offer.
Rewards
In addition to being a person who can accept an offer, an effective
acceptance must be also be made by a person having knowledge of an offer.
Silence as acceptance
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The general rule is that acceptance is not made by the offeree remaining
silent in response to the offer. An offeror cannot foist a contract on an
offeree by forcing the offeree act to reject the offer. The receipt of an
unsolicited offer does not create an obligation on the offeree to respond or
face acceptance by silence.
Prior Conduct
The prior conduct of the offeree that gives the offeror reason to believe that
silence is an acceptable method of acceptance may be sufficient to bind the
offeree who is silent.
Exercise of Dominion
An offeree who receives goods and exercises dominion over the goods will
be deemed to have accepted the goods even though the offeree does not
intend to accept.
Rejection
A rejection is simply a manifestation of the offeree’s intention not to accept
the offer. Such a manifestation typically results in the termination of the
power of acceptance unless the offeree also manifests an intention to take
the offer under “advisement” or the offeror has manifested an intention to
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keep the offer open. The rationale underlying the rule is that an offeror who
receives a rejection is likely to rely on it.
Inquires or requests for a better offer do not constitute rejection.
Counter-Offers
A counter-offer is a new offer made by the offeree to the offeror on the same
subject matter as the original offer. It is a substituted bargain proposed
instead of the one offered originally. When the offeree makes a counter-
offer, it typically will terminate the power of acceptance under the original
offer, unless a contrary intention is manifested.
Contract Formation I
Objective v. Subjective:
In order for a contract to be formed there must be a “meeting of the minds.”
Objective Theory looks to what a reasonable person would believe had they
been in the offeree’s same or similar position. Subjective intent is what the
offeror meant as determined by the surrounding circumstances.
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(2)Lapse of time
(3)Death or incapacity of the offeror
Lapse:
Governed by the reasonable person standard. Where parties bargain face to
face or over the telephone, the time for acceptance does not ordinarily
extend beyond the end of the conversation.
Sale of Goods:
U.C.C. 2-205 permits a merchant to make an irrevocable offer in a signed
writing. This is called a firm offer. There are special rules when the contract
form is supplied by the offeree.
(1) Protection is afforded against the inadvertent signing of a firm offer
when contained in a form prepared by the offeree by
requiring that such a clause by separately authenticated. If
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the offer clause is called to the offeror’s attention and he signs
it separately, he will be bound
(2) U.C.C Section 2-302 may operate to prevent an unconscionable
result which otherwise would flow from other terms
appearing in the form.
Article 2 has its own rules on the formation of a contract that differs from the
common law rules. For instance, under UCC 2-204 a contract can be formed
“in any manner sufficient to show agreement” This is even true if the parties
fail to include terms that would result in the contract failing for indefiniteness
at common law, UCC 2-204(3).
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current shipment of conforming or non-conforming goods, but
such a shipment of non-conforming goods does not constitute
an acceptance if the seller notifies the buyer that the
shipment is offered only as an accommodation to the buyer.
(1)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.
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of any term waived, unless the retraction would be unjust in view of
a material change of position in reliance on the waiver.
Counter-offer:
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 substituted by the original offer. Therefore, a reply to an
offer which purports to accept it but is conditional on the offeror’s assent to
terms additional to or different from those offered is not an acceptance.
(1)must propose a substituted bargain, or impose some condition not
implicit in the original offer. Anything less is not a counter-offer.
(2)Adding conditions which are already implicit in the offer will not
result in a counter-offer.
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(9)Was there acceptance, measured by the objective test of the
reasonable person so that it was a mutual
Types of Consideration:
Just about anything that parties want to bargain for can be consideration to
support a promise. The classic description is some type of transaction
involving a benefit or detriment to the parties, with typical contracts having
benefits and detriments to both parties.
“Unilateral” Contracts:
The consideration for a promise might be a performance by the promissee,
unilateral because there is only one promise involved. Other times, the
bargain might involve a forbearance – that is, refraining from doing an
affirmative act.
“Bilateral” Contracts:
The bargain involves one promise by the promisor in exchange for return
promise by the promisee (expressly or implied). Two promises involved.
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not actually intended by the parties to be for the benefit of the promisor or
the promisee. The rule is that it does not matter from who the consideration
moves or to whom it ultimately reaches. The key is still whether there is a
bargained for exchange.
Adequacy of Consideration:
There is no rule in contracts assessing the market value of the exchange
made by the contracting parties. Therefore, as a general rule, courts do not
require into the adequacy or sufficiency of consideration. Policing the
fairness of bargains would be an insurmountable task for courts to
undertake.
Gift Promises
Promises may be made that do not have any exchange element at all.
Because of the absence of the “bargained for exchange” these promises are
not supported by consideration. With respect to reliance as a basis for
enforcement of gift promises, the key factor seems to be whether the
conduct in reliance was reasonably induced and foreseen by the promisor.
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(1)Although a person might be morally obligated to abide by a gift
promise it is not typically enforceable as a contract.
(a) Exception: Where the elements of promissory estoppal are
present.
Condition or Consideration:
Arises when the promisor makes a promise to the promisee that requires the
promisee to act in some way that is purely incidental or conditional to
receiving the benefit, a conditional gift.
If the promisor makes the promise with no interest in the action required by
the promisee then there is no consideration. The key is whether the
detriment to the promisee requested in the promise is a condition that forms
the consideration for the promise or is merely an incidental detriment. If it is
the latter, then the promise is a gift.
Under the traditional common law rule, acceptance must be on the exact
same terms as the offer, without variation. This is known as the “mirror
image rule” Problems with the mirror image rule arises when the parties use
preprinted forms for the offer and the acceptance that contain different
terms.
Because the “last shot rule” acts as a counter-offer the terms of the contract,
if formed, will be based on the terms of the party who sends the last counter-
offer, which is then accepted by the other party.
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Battle of the Forms (U.C.C. 2-207):
Applies to the “sale of goods”, b/c this is statutory law it is binding and will
take precedence over case law.
Goods are things that are moveable under U.C.C. 2-205(1):
(1)“Goods” means all things that are moveable at the time of identification
to the contract for sale other than money in which the price is to be
paid, and things in action (intangible things).
Because many companies have their own forms with specific “terms &
conditions” related to the sale their forms will usually include terms
favorable to themselves. Applying the “mirror image rule” would result in
one party’s terms and conditions related to the sale becoming part of the
contract merely b/c the form was sent to the other party last, with no
consideration of whether the parties have actually agreed to those terms or
to what the parties might have otherwise have negotiated.
UCC 2-207 was drafted to modify the harsh effects of the “mirror image
rule”. The goal was simply to prevent parties from reneging on a deal after
the fact due to inconsequential variations b/t the buyer and seller’s forms,
not necessarily to favor one party or the other.
The following methods are employed by 2-207 to alter the “mirror image
rule”:
(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.
(1)Conduct by both parties that recognize 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 cases, the
terms of the contract consist of those terms on which the writings of
the parties agree, together with any supplemental terms
incorporated by this act.
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The Mailbox Rule
Option Contracts:
A promise to keep an offer open becomes irrevocable if the promise is
supported by consideration resulting in an option contract. However, the
“mailbox rule” does not apply to option contracts since they are subject to
specific time limits. The general rule between the parties is that exercise of
an option must be had by actual receipt by the offeror before the time period
expires.
Revocations by Mail:
If the offeror has not yet received the acceptance in the mail, the offeror
might send a letter to the offeree revoking the offer. Any such attempted
revocation, though, must be received by the offeree prior to acceptance in
order to be effective. If the offeree has already accepted, then the attempted
revocation is too late, as a contract has already been formed.
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One party claims that the other is in breach of contract for failing to perform
an obligation. Parol evidence is evidence extrinsic to the parties’ agreement,
evidence outside the parties’ agreement. When two parties enter into an
oral agreement, one party may introduce written evidence extrinsic to the
oral agreement.
Parol evidence rule is not applicable when the evidence is offered for some
other purpose. These include:
(1)A separate enforceable agreement
(2)An issue of interpretation
(3)A modification
(4)A formation issue
(5)A condition precedent
a. The exception is when parties have agreed to condition the
performance of their contract on the happening of an event.
If the event fails to occur, the contract is not performable &
parol evidence will be admitted to show condition existed.
(6)A consumer protection act
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Oral Agreements:
UCC 1-201(b)(3) defines agreement as “the bargain of the parties in fact, as
found in their language or inferred from other evidence.” Therefore, there is
nothing wrong with agreements being partly oral & partly written.
The policy behind the parol evidence rule are also evident in the rules on
modification, a distrust of oral agreements. A party can make up or
incorrectly recall an oral understanding or an oral modification. Another
policy is to show that there is a defense to contract formation. If no contract
was formed, then a party cannot be in breach.
Some courts will not recognize the fraud exception when the subject matter
of the fraud is addressed in the contract. This is because one of the elements
of fraud is that the defrauded party reasonably relied on the fraud, and the
document clearly shows that the purchaser did not reasonably rely on it.
Once the parties have reduced their agreement to a writing that they intend
to contain the final and complete statement of their agreement, neither
party may introduce evidence that contradicts or supplements the terms of
that agreement.
Parol evidence rule may not be invoked when the parties intended to
entirely by a written contract and not by their prior oral agreement.
Did the parties intend the writing to contain the final and complete
statement of their agreement?
Two types of written agreements: determined by the intentions of the parties
(1)Complete or total integration
a. The writing is a complete and exclusive expression of all the terms
on which the agreement was reached.
b. In a complete integration, the parties writing is complete &
exclusive expression of all the terms on which agreement was
reached. If oral agreement is not found in the writing, it will be
excluded.
(1)Partial integration
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a. The writing is a final expression of the terms that it contains, but
the agreement could contain other terms.
b. If the agreement could contain other terms, then the oral
agreement will be included or allowed.
When no merger clause exists use the “objective test” to conclude whether a
reasonable contracting party would naturally & normally have excluded the
term from the writing.
Contradictory Evidence:
If the written agreement is not a complete integration, then the contradictory
oral understanding is not considered to be part of the agreement. This
analysis gives greater weight to the written document.
Supplementary v. Contradictory
Ask if the two terms could reside in the same agreement with reasonable
harmony.
Statutes of Frauds
(1)If yes, is the contract reflected in writing that satisfies the statute?
a. Contracts under S of F can be written on anything
1. Can be a series of writings
2. Can be lost by time of litigation & its existence can be shown
through testimony
b. Writing must certain info.
1. At common law it must identify parties, nature of exchange,
and set forth all or must material terms
2. UCC 2-201 states that the only term that must be stated
correctly is quantity.
c. Writing must be signed by the party against whom the contract is
being enforced
(1)Does Contract fall within any of the exceptions?
a. Partial Performance
1. Exception: When a party seeking enforcement of an oral
contract, “has performed to such an extent that
repudiation of the contract would lead to an unjust or
fraudulent result the court will disregard the
requirement of a writing and enforce an oral agreement.
b. Promissory estoppal inducing reliance by offeree
Contract Modification:
One party provides something new to the other, an “extra” or a discharge,
while the other does nothing extra beyond what he or she already had a
contractual duty to do anyway or not even that.
A literal application of the pre-existing duty rule would suggest that such
“one sided” modifications of contracts should never be enforced. The
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“beneficiary” of one-sided contract modification supplies no new
consideration, but instead only does what he was already obligated to do.
Exception:
Parties may mutually agree to rescind their original contract and
replace it with a new contract, this act will “reuse” all the considerations
under the original agreement. The rescission relieves the parties of
their respective duties under the original contract. Then the very same
performance can serve as the basis for the
consideration under the new one.
Restatement 89:
A promise modifying a duty under a contract is binding if the modification is
FAIR and EQUITABLE in view of circumstances NOT ANTICIPATED by the
parties. Only applies to contract not fully performed on either side; an
executory contract exists on both sides.
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An accord is an agreement between debtor & creditor that the debtor will
provide a DIFFERENT performance from the one originally owed to the
creditor.
Satisfaction:
The performance of the accord, when the agreed-to different performance is
rendered & accepted, where the effect of a satisfaction is to discharge the
original obligation.
Executory accord would not affect the original debt, only accord and
satisfaction would.
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