What is the first topic to consider when asking "Do you have an offer?"?
commitment to form a contract
What is the second topic to consider when asking "Do you have an offer?"?
communication to identified offeree(s)
What is the fourth topic to consider when asking "Do you have an offer?"?
type of offer - unilateral or bilateral
What is the first topic to consider when asking "Did the offeror terminate the offer prior to acceptance?"?
Is the offer freely terminable?
What is the second topic to consider when asking "Did the offeror terminate the offer prior to acceptance?"?
Did the offer terminate? (revocation, rejection, operation of law)
What is the third topic to consider when asking "Did the offeror terminate the offer prior to acceptance?"?
Counteroffer (mirror-image rule, UCC rules)
What is the first topic to consider when asking "Did the offeree accept?"?
express acceptance (commitment to terms of offer - objective test; proper method of communication - improper method is a counteroffer; mailbox rule)
What is the fourth topic to consider when asking "Did the offeree accept?"?
starting performance - UCC
What is the fifth topic to consider when asking "Did the offeree accept?"?
unilateral offer (complete performance; notice to offeror - if necessary; what performance is necessary? - language of offer and surrounding circumstances)
What is the first topic to consider when asking "Does consideration support the offer and acceptance?"?
a bargained-for exchange (not gifts; not past consideration)
What is the second topic to consider when asking "Does consideration support the offer and acceptance?"?
legal detriment (pre-existing duty rule)
What is the third topic to consider when asking "Does consideration support the offer and acceptance?"?
promise must not be illusory (requirements/output contracts; conditions of satisfaction)
What is the fourth topic to consider when asking "Does consideration support the offer and acceptance?"?
substitutes for consideration (UCC rules - merchant's firm offer, modifications, promissory estoppel; promissory estoppel)
What is the hierarchy of sources of law?
US Constitution, federal statutes and treaties, state constitution, state law, municipal ordinances, common law
When a new issue arises, what will courts look to in order to decide the rule?
other jurisdictions, treatises, and restatements
What is a person doing when he consents?
agreeing to a particular detail, such as time, place, or action
What fact does mutual assent refer to?
a party voluntarily assumed the obligations, rights and responsibilities under a contract and all that it entails
What is a simple definition of mutual assent?
understanding of the parties about what the contract contemplates
What is the first question to ask when determining if there was intent to contract?
Was there an offer?
What is the second question to ask when determining if there was intent to contract?
Was there acceptance of that offer?
What is the test to determine mutual assent?
Would a reasonable person in the position of the offeree believe that the offeror had a present intent to K?
Should the courts look to outward expressions or to secret and unexpressed intentions?
look to words and acts, giving reasonable meaning. Undisclosed intention is immaterial - except when an unreasonable meaning is known by the other party
When mutual assent is not present at the time that a contract is negotiated, can this deficiency be remedied by later negotiations?
What is the rule of law for determining if a contract was formed?
Mental assent is not necessary for a contract. Look to words and acts, giving reasonable meaning.
What are the three requirements of an offer?
1. commitment (objective test) 2. communication of commitment 3. certain and definite terms
What is an indifferent (bilateral) contract?
offer is silent or calls for either performance or promise
What are six sources (RSC and UCC) of contract meaning and interpretation?
RSC 202, 203, 222, 223; UCC 1-205, 2-208
What does usage of trade refer to?
member of a particular trade at issue, or else must have actual or inferred knowledge of the usage
What is the general rule regarding advertisements?
Advertisements are generally not offers. However, when language communicates present commitment and not just a general offer to a large group, an offer may exist.
Is notification of the offeror of acceptance of a unilateral offer necessary?
not unless the offer requires notification or the offeror will not find out about acceptance within a reasonable time
How are bilateral offers accepted?
Acceptance must demonstrate the offeree's commitment to the terms of the offer and the offeree must communicate acceptance in a manner consistent with the offer.
Is acceptance of a bilateral contract the promise of performance or actual performance?
promise of performance
What is the general rule for terminating an offer?
An offeror is free to revoke an offer and terminate the offeree's power to accept, provided only that the offeror acts before the offeree has recorded his acceptance. WIth specific exceptions, offers are freely terminable before acceptance.
What are the three termination methods (RSC 36)?
revocation (offeror indicates intent to discontinue offer), rejection (express or by conduct - lapse of time), operation of law (illegality, death or incapacity of offeror or offeree, or death or destruction of offer's subject matter - no notice required)
When is revocation by conduct effective?
when offeree receives notice of conduct from reliable source
What is a firm offer?
made by merchant, is in writing, signed, and states that it will be held open for a period of time or indefinitely
For how long is a merchant's firm offer open?
a merchant's firm offer is irrevocable for time stated or a reasonable time if no time is stated; if no consideration given, irrevocable for no longer than 90 days
What is an enforceable option contract?
offeror promises to keep offer open and offeree gives consideration for that promise; not freely revocable
If an offeree foreseeably relies on an offer prior to acceptance, is the offer freely revocable?
no; foreseeable from offeror's point of view (subcontractor's bid to contractor)
An offer to form a unilateral contract is not freely revocable if one of which three criteria is met?
1. performance has begun (irrevocable for a reasonable time) or 2. offeree's reliance was reasonably foreseeable to offeror or 3. contract is divisible and some divisible part was performed
Who retains the risk of loss in a sale of goods, according to the UCC?
The seller retains the risk of loss until delivery of the goods.
If the seller is a merchant, when does risk of loss pass to the buyer?
when buyer physically receives goods
If the seller is not a merchant, when does risk of loss pass to the buyer?
once seller makes the goods available for a reasonable time after notifying buyer that they are available
What is the effect of a late acceptance?
A late acceptance or one that doesn't conform to the terms of the offer is a counteroffer unless her silence satisfies the requirements of RSC 69.
What can operation of law refer to?
1. illegality 2 death or destruction of offer's subject matter 3 death or incapacity of either offeror or offeree
What is the rule regarding termination by death or incapacity?
An 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.
What is the general rule regarding options and termination by rejection?
An offer remains open for the prescribed time even though the holder of the option says during the time period that he does not intend to exercise it.
What is the mailbox rule?
Acceptance is effective upon mailing (properly stamped and addressed), not receipt.
What is the RSC number for the mailbox rule?
RSC 63 provides that an acceptance is effective as soon as it is put out of the offeree's possession.
What is the first exception to the mailbox rule?
Acceptance is effective upon receipt when the offer states that the mailbox rule will not apply.
What is the second exception to the mailbox rule?
Acceptance is effective upon receipt when the offer suggests a method and a different reasonable method is used.
What is the third exception to the mailbox rule?
Acceptance is effective upon receipt when the offeror sends an acceptance, then a rejection: acceptance still effective upon dispatch, unless rejection received first and relied upon by the offeror.
What is the fourth exception to the mailbox rule?
Acceptance is effective upon receipt when the offeree sends rejection then acceptance: acceptance is effective upon receipt if received first; if not, acceptance is a counteroffer.
What is the fifth exception to the mailbox rule?
Acceptance is effective upon receipt when the offer is pursuant to an option contract.
What is the option contract exception to the mailbox rule?
When the offeree has paid money to create an option period for acceptance, the usual mailbox rule establishing a contract on dispatch of the acceptance does not apply. The acceptance must be received within the option period to be effective.
What is the mirror image rule?
At common law, the acceptance must be the mirror image of the offer; that is, the offeree must accept the offeror's precise offer.
What is a counteroffer?
RSC 39: 1. an express rejection of the offer 2. a new offer 3. an operation turning the original offeree into the new offeror and the original offeror into the new offeree
What is not a counteroffer?
1. inquiring about a better offer 2. suggesting a term implicit in the offer
What is the rule regarding additional terms in acceptance or confirmation?
UCC 2-207 - Replies to offers are effective acceptances even if they change or add to the offer's terms. (Three exceptions.)
What are the three exceptions to the additional terms in acceptance or confirmation rule?
1. offeree ships nonconforming goods and indicates that it is doing so as an accommodation to the buyer 2. the reply does not express acceptance 3. offeree expressly conditions its acceptance on offeror's agreement to the new or different terms
If you have an acceptance, what are the terms?
All terms common to offer and acceptance. If the offeror and offeree are not both merchants (neither is or only one is), new or different terms come in only if offeror agrees.
If you have an acceptance and both parties are merchants, how are new terms handled?
New terms are in automatically unless the offer contains a contrary statement, the new terms materially alter the offer, or the offeror objects within a reasonable time.
If you have an acceptance and both parties are merchants, how are different terms handled?
Some states treat as new terms, others use the "knockout rule" (removes conflicting terms from both offer and acceptance, substitute UCC gap-fillers).
What are the UCC gap-fillers?
Price 2-305(1), Place of Delivery 2-308, Time for Shipment or Delivery 2-309, Time for Payment 2-310, Duration of the Contract 2-309
Terms of a contract are reasonably certain if they provide a basis for which two things?
1. determining the existence of a breach 2. giving an appropriate remedy
Do open terms automatically mean failure for indefiniteness?
not if the parties have intended to make a contract and there is a reasonable certain basis for giving an appropriate remedy
What are three aids to contract construction?
1-205 (Course of Dealing, Usage of Trade), 2-208 (Course of Performance/Practical Construction), gap-fillers
What is a requirements contract?
seller agrees to supply all of buyer's needs and buyer agrees to buy only from seller
What is consideration?
a bargained-for exchange to incur a real legal detriment - the promisor's promise must not be illusory
What does bargained-for mean?
the legal value given is that which the other party requested (i.e., that there has been communication about who gives or does what for whom); the parties are in a contract-making state of mind - not a gift-giving state of mind
A promisor incurs a legal detriment to do what?
something the actor had no prior legal duty to do or not do something that the actor had a prior legal right to refrain from doing
What are examples of promises subject to a condition of satisfaction?
personal/artistic work - duty of good faith using promisor's subjective sense; commercial work - duty of good faith using objective reasonableness standard
What are the three interrelated purposes of consideration doctrine?
evidentiary, cautionary, distinction
Is a promise to bestow a gift sufficient consideration?
Promises to bestow gifts are insufficient consideration unless the promisor has some motivation other than benevolence.
Is a promise to pay for past work or something already given sufficient consideration?
Promises to pay for past work or something already given is insufficient consideration because there is no bargained-for exchange.
How is adequacy of consideration determined?
Did the promisor give the promissee enough of the valuable thing?
What is the difference between sufficiency and adequacy?
Sufficiency - does the law recognize this thing as valuable? Adequacy - did the promisor give the promisee enough of the valuable thing?
What is the general rule regarding sufficiency and adequacy?
As a general rule, we care about sufficiency only - a party is free to bargain for as much or as little "valuable thing" as it desires.
What are five situations in which contracts lack consideration?
illusory promises, preexisting duty, illegal consideration, past consideration, moral obligations
What is the peppercorn theory?
Something as insignificant as a peppercorn can be sufficient consideration when given in exchange for a promise.
What is past consideration?
A promise to pay for past work or something already given is not consideration because there is no bargained-for exchange.
What is one exception to the past consideration rule?
an act specifically requested and performance rendered with reasonable expectation of payment - subsequent promise to pay will be enforced
How does common law deal with an unexplained partial payment of a time-barred debt?
An unexplained partial payment of a time-barred debt revived the entire obligation.
What is a preexisting duty?
A promise to perform or actual performance of something one was already obligated to do is not consideration.
What is the common law rule for modification of an existing obligation?
An agreement to modify an existing contractual obligation requires some new consideration to be enforceable.
When is a promise modifying a duty under a contract not fully performed on either side binding?
1. if the modification is fair and equitable in view of the circumstances not anticipated by the parties when the contract was made or 2. to the extent provided by statute or 3. to the extent that justice requires enforcement in view of material change of position in reliance on the promise
What is the UCC rule on modification?
UCC 2-209 says that an agreement modifying a contract needs no consideration to be binding. Modifications made must meet the test of good faith.
What are the two exceptions to the general rule on modification?
1. unforeseen circumstances 2. contract rescission and substitution
What are the UCC Article 2 substitutes for consideration?
1. merchant's firm offer 2. modifications of existing contracts 3. promissory estoppel
What are the common law substitutes for consideration?
1. promissory estoppel 2. modifications under seal
What does promissory estoppel do?
operates to enforce certain promises that have not been supported by valuable consideration
What is estoppel?
a doctrine that, based on a person's prior actions, prevents that person from claiming absence of a right created in or a duty owed to another person who relied, in good faith, on those actions
What is a promissory estoppel situation?
When A makes a statement that B relies upon in good faith, A is prevented from either denying the truth of or avoiding the consequences flowing from that statement.
What does promissory estoppel prevent Party A from doing?
When Party B suffers some legal detriment as a result of a contract, Party A cannot claim that there was no consideration for the contract.