the parties must agree on the terms of the contract and manifest to each otehr their mutual consent to teh same bargain
agreement is evidenced by what?
two events an offer and an acceptance
what are the other elements of a conrtract?
consideration, capacity, and legality
what does the objective theory of contracts mean?
a partys words and conduct are held to mean whatever a reasonable person in the offerees position would think they meant
requirements of the offer
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
what is intent determined by?
what a reasonable person in the oferees position would conclude the offerors words and actions meant
expressions of opinion
its not an offer, it does not indicate an intention to enter into a binding agreement
statements of future intent
a statement of an intention to do something in the future is not an offer
a request of invitation to negotiate is not an offer, it only expresses a willingness to discuss the possibly of entering in to a contract, the invitation to submit bids is not an offer, contractor doesn't bind the govt or private firm by submitting a bid (the bids that the contracts submit are only offers, but the govt and private firm can bind the contractor by accepting the bid)
usually ads are treated not as offers to contract but as invitations to negotiate, price lists are an example of invitation merely is an offer for the buyer to buy at that price doesn't have to sell (prices subject to change)
a seller offers goods for sale through an auctioneer but tis not a form of contract, asking bidders to submit offers, rejection terminates an offer
auctions with and without reserve
with reserve: the seller may withdraw the goods at any time before the auctioneer closes the sale by announcement or by the fall of the hammer, assumed to be auctions with reserved, unless terms say without reserve where the goods cannot be withdrawn
agreements to agree
they may be enforceable agreements if it is clear that the parties intended to be bound by the agreements, the emphasis is on the parties intent rather than on form, increasingly the courts are holding that a preliminary agreement constitutes a binding contract if the parties have agreed on all essential terms and no disputed issues remain to be resolved
definiteness of terms
The second requirement for an effective offer
what do the specific terms required depend on?
the type of contract
what must a contract include?
Expressed in a contract or inferred from it
1. the identification of the parties
2. the identification of the object or subject matter of the contract (also quantity, when appropriate) including the work to be performed with specific identification of such items as goods services, and land
3. the consideration to be paid
4. the time of payment, delivery, or performance
what will happen when the parties have clearly manifested an intent to form a contract?
courts will sometimes willing to supply a missing term in a contract, especially in a sales contract, but a court will not rewrite a contract if the parties expression of intent is tooo vague or uncertain to be given with any precise meaning
The third requirement for an effective offer, the offer must be communicated to the offeree
termination of the offer
the communication of an effective offer to an offeree gives the oferee the power to transform the offer into a binding,legal obligation by an acceptance
what happens to teh power of acceptance?
it can be terminated either by the action of the parties or by operation of law
How can an offer be terminated?
What is revocation?
the offerer's act of withdrawing (revoking) an offer
What happens if the revocation is communicated to the offeree before the offeree accepts?
the offeror usually can revoke the offer as long the revocation is communicated to the offeree before the offeree accepts
how can revocation be accomplished?
by express repudiation of the offer (for example with a statement such as "I withdraw my previous offer of October 17" or by performance of acts that are inconsistent with the existence of the offer and are made known to the oferee (Selling the offered property to another person in the presence of the offeree)
what is the general rule followed by most states?
a revocation becomes effective when the offeree or the oferees agent actually receives it
how can an offer to the general public be revoked?
in the same manner that the offer was originally communicated
When do the courts refuse to allow an offeror to revoke an offer?
when the offeree has changed position because of justifiable reliance on the offer
what kind of offers made by merchants may also be considered irrevocable?
how is an option contract created?
an offeror promises to gold an offer open for a specified period of time in return for a payment (consideration) given by the offeree
what does an option contract do?
takes away the offerors power to revoke the offer for the period of time specified in the option
what are option contracts frequently used in conjunction with?
the sale of lease of real estate
rejection of the offer by the offeree
if the oferee rejects the offer the offer is terminated, merely inquiring about an offer does not constitute rejection
what is a counteroffer?
a rejection of the original offer and the simultaneous making ofa new offer
what is the mirror image rule?
it requires the offerees acceptance to match the offerors offer exactly to mirror the offer
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
What constitutes as acceptance?
a voluntary act by the offeree that shows assent (agreement) to the terms of an offer
oferee must accept unequivocally, mirror image rule
What other ways are sometimes considered acceptance?
Silence does not constitute ordinarily even if the offeror states sometimes the offereeee does have a duty to speak , in these situations her or his silence or inaction will operate as an acceptance ,
Communication - not neccessary if the offer dispenses with the requirement, or if the offer can be accepted in silence
Mode and timeliness of acceptance - in bilateral contracts acceptance must be timely, made before the offer is terminated
why is communication of acceptance necessary in a bilateral contract?
IT's in the form of a promise (not performance) and the contract is formed when the promise is made
when does acceptance take affect in the mail box rule?
at the time the offeree send or delivers tehe cmmunication via the mode expressly or implieddly authorized by the offeror, aceptance becomes valid when it is dispatched not when it is received by the offeror, does not apply to instant forms of communication
-include link to page containing full contract
what provisions should you include in an online contract?
1. acceptance of terms
3. return policy
5. limitation on remedies
7. dispute resolution
what does the forum selection clause do?
indicates location in which contract disputes will be resolved
What is a choice of law clause?
the parties specift that any duspute arising out if the contract will be settled in accordance with the law of a particular juiisdiction scj as a state or country
-click on agreements
-shirnk wrap agreements terms are in the box it comes in
-Browse wrap terms -