Mutual Assent

"Firm Offer" under Art. II?

1) A MERCHANT; 2) Offers to sell goods; 3) In a signed writing; and 4) Writing gives assurances offer will be held open. Offer is not revocable for lack of consideration during the time stated. If not stated, a reasonable time not to exceed 3 months.

Termination by operation of law includes?

1) Death or insanity of parties before acceptance. 2) Destruction of subject matter. 3) Supervening legal prohibition of proposed K.

Essential terms of an offer typically include? However, A promise will generally be enforceable even if it does not spell out every material term, as long as?

1) Identity of the Offeree. 2) Subject matter. 3) Price. It contains some objective standard the courts can use to supply the missing term.

Criteria used to determine whether a communication is an offer include?

1) Language. 2) Surrounding circumstances. 3) Prior practice and parties' relationship. 4) Industry customs. 5) Method of communication.

Indirect revocation elements?

1) Offeree receives reliable info. 2) Of definite acts of the offeror inconsistent with an intent to enter into the proposed K. 3) That indicate to a reasonable person. 4) That he no longer wishes to enter into the proposed K.

No notice is required after performance is completed on Unilateral K's if?

1) Offeror waived notice; or 2) Offeree's performance would normally come to the offeror's attention within a reasonable time.

Elements of an Offer? (In deciding whether a communication is an "Offer", ask whether they exist)

1) Promise, undertaking, or commitment to enter into a K, made with the INTENT to enter into a K. 2) Certainty & Definiteness in the essential terms. 3) Communicated to the offeree.

A counteroffer does 2 things.

1) Rejects the original offer. 2) Serves as a new offer.

For communication to be an "Offer" it must?

Create a reasonable expectation in the offeree that the offeror is willing to enter into a K on the basis of the offered terms.

An offer's terms must be? The basic inquiry is?

Definite and certain. Are the ESSENTIAL terms capable of being enforced?

An offer must ID the offeree or? In order to?

A class to which he belongs. Infer that the offeror intended to create a power of acceptance.

The subject matter of an offer must be certain because?

A court can't enforce a promise if it can't tell what the promise is?

Define acceptance?

A manifestation of assent to the terms of an offer.

What is an OFFER? The basic test is?

A manifestation of willingness to enter into a bargain, so made as to justify an understanding that assent to that bargain is invited and will conclude it. Whether a reasonable person would believe that his assent creates a contract.

An offer creates what?

A power of acceptance in the offeree. Liability on the offeror.

An offer to buy goods for current or prompt shipment is construed as inviting acceptance by?

A promise to ship or Current or prompt shipment of conforming or nonconforming goods.

Under Art. II gap filler, if nothing is said about the price the price will be?

A reasonable price at the time of delivery.

A shipment of nonconforming goods is? Unless? In this case the buyer may?

An acceptance and a breach. Seller seasonably notifies buyer that the nonconforming goods are offered only as an accomodation. Reject nonconforming goods. If he does, the shipper is not in breach and may reclaim the goods.

"With reserve" means? "Without reserve" means?

Auctioneer may withdraw goods at any time before the sale is complete. Goods can't be withdrawn after bidding starts unless no bid is made within a reasonable time.

Common law "mirror image rule" v. Art. II "battle of the Forms"

Different or additional terms in the acceptance serves a rejection and counteroffer. Proposal of additional or different terms in a definite and timely acceptance does NOT constitute a rejection and counteroffer but is an acceptance unless the acceptance is expressly made conditional on assent to the new terms. If both parties are MERCHANTS, the new terms become a part of the contract unless 1) Offer expressly limits acceptance to the terms of the offer; 2) They materially alter it; or 3) Notification of objection to them is given within a reasonable time after the proposal is received.

3 ways to revoke?

Direct communication. Indirect communication. Publication.

Art. II rules for auction contracts. Goods auctioned in lots? When is a sale complete? Auctions are, by default, with or without reserve? Bids on the seller's behalf?

Each lot is a separate sale. When the auctioneer's hammer falls. With reserve unless goods are explicitly put up without reserve. Except at a forced sale, sellers can't bid unless notice has been given that they can. If they do, the winner may void the sale or take the goods at the last good-faith bid price.

When the terms of an offer are vague what do you focus on? Explain.

Focus on the CONTRACT. The contract must be definite and certain. Uncertainty can be cured if the offer can be made certain by part performance or acceptance.

Methods of accepting a bilateral K?

Generally, any reasonable manner and by any reasonable medium one can accept. "Offeror is the master of his offer." Offeror can specify any manner of acceptance in the offer.

To have the power to accept, the offeree must? Therefore?

Have knowledge of the offer. It must be COMMUNICATED to him.

For communication to be an offer, rather than a mere invitation to begin preliminary negotiations, it must contain?

Intent to enter into a K.

Acceptance transmitted by unauthorized means or improperly transmitted by authorized means may still be effective if?

It's actually received while the offer is still open.

In order to accept, the offeree must?

KNOW of the offer.

Subject matter terms required for real estate offers?

Land ID & Price. Land must be identified with some particularity but a deed description is not required.

Advertisements containing price quotes are usually construed as? When will courts treat the advertisement as an offer?

Mere invitations for offers. Announcements of prices at which the seller is willing to receive offers. 1) Language can be construed as a promise. 2) Terms are certain & definite. 3) Offeree is clearly defined.

How does time affect offers?

Must accept within a specified or reasonable time or the offer will terminate.

Subject matter terms required in offers for services?

Nature of the work to be performed.

Can an offeree's power of acceptance be assigned? Exception?

No. Right to accept under an option K can be assigned.

What effect will a rejection or counter-offer to an option have on the offer?

None (will not terminate offer) unless the offeror has detrimentally relied on the rejection or counter-offer.

What is mutual assent?

Offer & Acceptance. "A meeting of the minds." An agreement on the "same bargain at the same time."

Rules for accepting unilateral contracts?

Only complete performance constitutes acceptance. Starting performance does not obligate offeree to complete it. Starting performance may create an option making the offer irrevocable.

Situations where revocation is limited?

Options contracts. Art. II "Firm Offers" Detrimental Reliance. Part Performance.

Notice of acceptance requirements for unlilateral K's: Restatement v. Art.II? If required notice is not given: Restatement v. Art.II?

Restatement: after performance is COMPLETE. UCC: after performance STARTS. Restatement: K is voidable by the offeror for failure of an implied condition. UCC: K is void because offer lapsed

Express rejection

The offeree makes a statement that she doesn't intend to accept. Terminates the offer.

Failure to state the price does not prevent formation of a K if? Exception?

The parties intended to form a K without the price being settled. Real Estate K's must state the price.

If 1 or more terms are left open in an offer it will not prevent the formation of a K if? In such a case, the courts can? The more terms that are left open, the less likely it is that the parties?

The parties intended to make a K and there is a reasonably certain basis for giving a remedy. Supply reasonable terms consistent with the parties' intent. Intended to enter into a contract.

Who may accept an offer?

The party or class member designated by the offer.

Bilateral K v. Unilateral K - how is acceptance different?

Unilateral K's can only be accepted by COMPLETE PERFORMANCE. Bilateral K's can be accepted by STARTING PERFORMANCE.

When is a revocation effective? A rejection?

When received or published. When received.

If uncertainty results because the offeree is given a choice of alternative performances, the offer can become definite when? In other words?

When the offeree communicates her choice. Acceptance can cure uncertainty in the terms of an offer.

If the offer specifies a time period to accept when does that period start?

When the offeree receives the offer.

When is an offer irrevocable because of detrimental reliance?

When the offeror should reasonably expect the offer to induce action or forbearance on part of the Offeree or 3rd person AND it does so to their detriment.

Must acceptance be communicated to enter into a bilateral K? Exception?

Yes. Waiver of notice in offer. Offeree silently takes offered benefits.

Mailbox rule for acceptance? Exceptions? Rejection?

Acceptance effective at the MOMENT OF DISPATCH, if the mail is properly addressed and stamped. Unless (exceptions): 1) Offer stipulates that acceptance is not effective until received; or 2) An option contract is involved (acceptance effective only on receipt). Rejection effective when Received.

Mailbox rule? When does it apply? Unless? When it does NOT apply?

Acceptance is effective on dispatch, rejection when received. Offeree sends acceptance, then rejection. Unless the offeror gets the rejection and changes position in reliance on it; offeree will be estopped from enforcing the K. Offeree sends rejection, then acceptance, the one received first wins.

Under Art II gap filler, the party to whom the K gives the right to fix the price at the time of delivery must? If not?

Act in good faith. The other party may void the K or fix a reasonable price themselves.

Revocation terminates the offeree's power of acceptance if?

Communicated before acceptance.

Vagueness can be cured by? If?

Part performance. It clarifies of the terms.

An offer becomes irrevocable when? 3 notes on unilateral K's? 2 note on Bilateral K's?

Performance begins. 1) An option K is formed when performance starts. 2) Unlateral K will not be formed until performance is complete. 3) Offeree is not bound to complete performance. 1) Bilateral K is formed when performance begins, then revocation becomes impossible. 2) Notice that performance has started may be necessary.

What is NOT considered part performance? But it may constitute?

Preparation. Detrimental reliance sufficient to make the offeror's promise binding.

Subject matter terms required for the sale of goods?

QUANTITY. Must be certain or capable of being made certain.

Requirements K v. Output K

Quantity is whatever quantity the buyer requires. Quantity is whatever quantity the seller can produce (output).

In what ways can an offer be terminated?

Revocation Rejection. Counteroffer. Lapse of time. Death or insanity of parties. Non-occurrence of any condition of acceptance under the terms of the offer. Destruction of subject matter. Supervening legal prohibition of proposed K.

If an offer states some MATERIAL term is to be agreed on at a future date?

The offer is too uncertain.

Revocation can be published if?

The offer was published.

When a counteroffer sounds like a counteroffer but not to the court and will still be treated as acceptance?

Statements making implicit terms explicit. Grumbling Acceptance. Request for clarification.

Offers allowing a person to specify an item within a range of choices may be?

Sufficiently definite if the range is reasonable.

The presumption that the parties' intent was to include a reasonable term goes to? This presumption cannot be made if the parties have included? Because?

Supplying MISSING terms. Ambiguous terms. It makes the contract too vague to be enforced because intent can't be determined.

In requirements K's and output K's it is assumed? Hence?

That the parties will act in good faith. Quantity can't be unreasonably disproportionate to: 1) Stated estimate; or 2) Normal or comparable prior output or requirement quantities.

Use of broad communications media (TV, publications, etc.)?

The broader the media, the more likely it is that the courts will view the communication as merely a solicitation of an offer.