B-Law Chapter 12 Terms
acceptance
1) In contract law, the offeree's notification to the offeror that the offeree agrees to be bound by the terms of the offeror's proposal. (2) In negotiable instruments law, the drawee's signed agreement to pay a draft when presented. The acceptance must be unequivocal and must be communicated to the offeror. Generally, only the person to whom the offer is made or that person's agent can accept the offer and create a binding contract.
3 thing for an offer to be effective
1) The offeror must have a serious intention to become bound by the offer. 2)The terms of the offer must be reasonably certain, or definite, so that the parties and the court can ascertain the terms of the contract. 3) The offer must be communicated to the offeree.
revocation can be done by
1)Express repudiation of the offer (such as "I withdraw my previous offer of October 17"). 2)Performance of acts that are inconsistent with the existence of the offer and are made known to the offeree (for instance, selling the offered property to another person in the offeree's presence).
Termination by Operation of Law
1. lapse of time 2. destruction of the specific subject matter of the offer 3. death or incompetence of the offeror or the offeree 4. supervening illegality of the proposed contract
choice of law clause
A clause in a contract designating the law (such as the law of a particular state or nation) that will govern the contract. more for international contracts
provisions to include in online offers- acceptance of terms
A clause that clearly indicates what constitutes the buyer's agreement to the terms of the offer, such as a box containing the words "I accept" that the buyer can click.
mirror image rule
A common law rule that requires, for a valid contractual agreement, that the terms of the offeree's acceptance adhere exactly to the terms of the offeror's offer.
e-contract
A contract that is entered into in cyberspace and is evidenced only by electronic impulses (such as those that make up a computer's memory), rather than, for example, a typewritten form.
option contract
A contract under which the offeror cannot revoke his or her offer for a stipulated time period and the offeree can accept or reject the offer at any time during this period. The offeree must give consideration for the option to be enforceable. Option contracts are frequently used in conjunction with the sale or lease of real estate.
agreement
A meeting of two or more minds in regard to the terms of a contract; usually broken down into two events—an offer by one party to form a contract, and an acceptance of the offer by the person to whom the offer is made.
offer
A promise or commitment to perform or refrain from performing some specified act in the future
forum-selection-clause
A provision in a contract designating the court, jurisdiction, or tribunal that will decide any disputes arising under the contract.
provisions to include in online offers- Payment
A provision specifying how payment for the goods (including any applicable taxes) must be made.
provisions to include in online offers- limitation on remedies
A provision specifying the remedies available to the buyer if the goods are found to be defective or if the contract is otherwise breached. Any limitation of remedies should be clearly spelled out.
where intent may be lacking - preliminary negotiations
A request or invitation to negotiate is not an offer. It only expresses a willingness to discuss the possibility of entering into a contract. Statements such as "Will you sell your farm?" or "I wouldn't sell my car for less than $8,000" are examples.
mailbox rule
A rule providing that an acceptance of an offer becomes effective on dispatch.
provisions to include in online offers- privacy policy
A statement indicating how the seller will use the information gathered about the buyer.
where intent may be lacking- statements of future intent
A statement of an intention to do something in the future (such as "I plan to sell my Verizon stock") is not an offer.
provisions to include in online offers- return policy
A statement of the seller's refund and return policies.
record
According to the Uniform Electronic Transactions Act, information that is either inscribed on a tangible medium or stored in an electronic or other medium, and that is retrievable.
partnering agreement
An agreement between a seller and a buyer who frequently do business with each other on the terms and conditions that will apply to all subsequently formed electronic contracts. useful for electronic inventory/just in time ordering of parts and supplies
click on agreement
An agreement that arises when a buyer, engaging in a transaction on a computer, indicates his or her assent to be bound by the terms of an offer by clicking on a button that says, for example, "I agree"; sometimes referred to as a click-on license or a click-wrap agreement.
shrink wrap agreement
An agreement whose terms are expressed in a document located inside a box in which goods (usually software) are packaged; sometimes called a shrink-wrap license. a shrink-wrap agreement is not between a retailer and a buyer but is between the manufacturer of the hardware or software and the ultimate buyer-user of the product. The terms generally concern warranties, remedies, and other issues associated with the use of the product.
where intent may be lacking - expressions of opinion
An expression of opinion is not an offer. It does not indicate an intention to enter into a binding agreement.
Definiteness of terms- 1
An offer must have reasonably definite terms so that a court can determine if a breach has occurred and give an appropriate remedy. The specific terms required depend, of course, on the type of contract.
counteroffer
An offeree's response to an offer in which the offeree rejects the original offer and at the same time makes a new offer.
e-signature
As defined by the Uniform Electronic Transactions Act, "an electronic sound, symbol, or process attached to or logically associated with a record and executed or adopted by a person with the intent to sign the record." For an e-signature to be enforceable, however, the contracting parties must have agreed to use electronic signatures. For an electronic document to be valid, it must be in a form that can be retained and accurately reproduced.
provisions to include in online offers- disclaimer
Disclaimers of liability for certain uses of the goods. For instance, an online seller of business forms may add a disclaimer that the seller does not accept responsibility for the buyer's reliance on the forms rather than on an attorney's advice.
Definiteness of terms
Identification of parties, object or subject matter of the contract, consideration to be paid, and time of payment, delivery, or performance
Definiteness of terms -2
Identification of parties, object or subject matter of the contract, consideration to be paid, and time of payment, delivery, or performance
Signatures on E-Records
If electronic record or signature is act of a particular person, the record or signature is attributed to that person. However, state law governs issues of agency, authority, forgery, contract formation.
revocation
In contract law, the withdrawal of an offer by an offeror. Unless an offer is irrevocable, it can be revoked at any time prior to acceptance without liability.
where intent may be lacking- advertisements and price lists
In general, representations made in advertisements and price lists are treated not as offers to contract but as invitations to negotiate.
where intent may be lacking- live and online auctions
LIn a live auction, a seller "offers" goods for sale through an auctioneer, but this is not an offer to form a contract. Rather, it is an invitation asking bidders to submit offers. In the context of an auction, a bidder is the offeror, and the auctioneer is the offeree. The offer is accepted when the auctioneer strikes the hammer.
serious intent test
Offers made in obvious anger, jest, or undue excitement do not meet the serious-and-objective-intent test. A reasonable person would realize that such offers were not made seriously. Because these offers are not effective, an offeree's acceptance does not create an agreement.
provisions to include in online offers- Dispute resolution
Provisions relating to dispute settlement, which we examine more closely in the following section.
browse wrap terms
Terms and conditions of use that are presented to an Internet user at the time a product, such as software, is downloaded but that need not be agreed to before the product is installed or used. In other words, a person can install the software without clicking "I agree" to the terms of a license. Browse-wrap terms are often unenforceable because they do not satisfy the agreement requirement of contract formation.
Uniform Electronic Transactions Act (UETA)
The UETA has been adopted, at least in part, by forty-eight states, resulting in more uniformity among state laws governing electronic transactions. The UETA declares that a signature may not be denied legal effect or enforceability solely because it is in electronic form. The primary purpose of the UETA is to remove barriers to e-commerce by giving the same legal effect to electronic records and signatures as is given to paper documents and signatures.
Online Offers- displaying
The seller's Web site should include a hypertext link to a page containing the full contract so that potential buyers are made aware of the terms to which they are assenting. The contract generally must be displayed online in a readable format, such as a twelve-point typeface. All provisions should be reasonably clear.
If the UETA is encacted with modifications
The state law governs if - states procedures requirements are consistent with the E-Sign act -state doesn't give priority to one type of technology -state law was enacted after the E-Sign act and refers to it The E-Sign Act governs if the modifications are inconsistent with the E-Sign act
Scope and Applicability of the UETA
UETA does not create new rules, but rather enforces real world rules on electronic contracts only applies to e-records and e-signatures relating to transactions does not apply unless both parties have agreed to electronic transactions can be implied by conduct
where intent may be lacking- invitations to bid
When a government entity or private firm needs to have construction work done, contractors are invited to submit bids. The invitation to submit bids is not an offer. The bids that contractors submit are offers, however, and the government entity or private firm can bind the contractor by accepting the bid.
Preliminary Agreements
if the parties have agreed on all essential terms and no disputed issues remain to be resolved, the preliminary agreement can constitute a contract In contrast, if the parties agree on certain major terms but leave other terms open for further negotiation, a preliminary agreement is not binding. The parties are bound only in the sense that they have committed themselves to negotiate the undecided terms in good faith in an effort to reach a final agreement.
requirements of an offer
offeror's serious intention, definiteness of terms, communication to offeree
e-sign act
provides that no contract, record, or signature may be "denied legal effect" solely because it is in electronic form. In other words, under this law, an electronic signature is as valid as a signature on paper, and an e-document can be as enforceable as a paper one. The E-SIGN Act does not apply to all types of documents. Documents that are exempt include court papers, divorce decrees, evictions, foreclosures, health-insurance terminations, prenuptial agreements, and wills.
If the UETA is enacted without modifications
state law governs
serious intention
the contract is judged by what a reasonable person in the offeree's position would conclude about the offer. Offers made in anger, jest, or undue excitement are usually not offers. Expressions of opinion are not offers Statements of intention, preliminary negotiations, and agreements to agree, are not offers Advertisements, catalogs, price lists, and circulars are treated as invitations to negotiate, and not as offers
communication
the offer must be communicated to the offeree. Ordinarily, one cannot agree to a bargain without knowing that it exists.