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49 Cards in this Set
- Front
- Back
When we say we are making the offer less wimpy, we mean these offers are __________________.
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Less able to be revoked by the Offeror
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Ways to Make Offers Less Revocable
FIRM OFFERS are offers that ____________________. |
Lack Consideration (applicable only to merchants)
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Ways to Make Offers Less Revocable
Firm offers are only applicable to ____________. |
Merchants
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Ways to Make Offers Less Revocable
Firm Offers |
Offer by merchant to buy or sell goods in a signed record will be held open as not revocable, for lack of consideration, during the time stated or if no time is stated for a reasonable time, but in no event may such period of irrevocability exceed three months, and must separately signed by the offeror.
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Ways to Make Offers Less Revocable
In order for a Firm Offer to stand, it must be __________. |
Separately signed by the offeror
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Ways to Make Offers Less Revocable
Firm Offers would resolve the situation in Dickinson v. Dodds (said he would leave the offer open to 9:00 AM Friday) but only if Dodds were this. |
A Merchant
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Ways to Make Offers Less Revocable
Firm offers remain open for _____(1)______, but will not exceed ______(2)________. |
(1) a reasonable time
(2) three months |
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Ways to Make Offers Less Revocable
Option Contract created by Part Performance |
Where an offeror invites an offeree to accept by rendering a performance and does not require a promise, an option contract is created when the offeree tenders or begins the invited performance.
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Option Contracts Created by Part Performance only pertain to these types of contracts
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Unilateral (Acceptance by Performance) Contracts
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Ways to Make Offers Less Revocable
Option Contract created by Part Performance overturn the ability to do this. |
Revoke a unilateral contract just prior to completion of performance (like in Petterson v. Pattberg).
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Ways to Make Offers Less Revocable -- Option Contract created by Part Performance
Can now create an option contract created not by ________(1)____________, but instead by _________(2)_____. |
(1) Payment of consideration (bilateral)
(2) Performance or tender |
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Ways to Make Offers Less Revocable
Option Contract created by Part Performance Tender |
Beginning to Perform is enough
Be sure to distinguish tendering (beginning of performance), from preparation for performance. |
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Tender allows creation of Option Contract by Part Performance
Be sure to distinguish ____(1)____, from ________(2)_________. |
(1) Tendering (beginning of performance)
(2) Preparation to Perform |
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Ways to Make Offers Less Revocable
Reliance |
Creates an Option Contract
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Ways to Make Offers Less Revocable
Reliance Creates Option Contract |
An offer which the offeror should reasonably expect to induce action or forbearance and which does induce such action or forebearance is binding as an OPTION CONTRACT to the extent necessary to avoid injustice.
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Reliance an as Option Contract applies largely in _______________.
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Contractor / Subcontractor Relations
You ask for sub-bids in creating your offer, you are allowed to rely on the other party performing by that sub-bid if you reasonably relied on it to make your offer and were awarded the contract. |
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For reliance that creates an option contract, the person receiving the original offer (i.e. a sub contractor bid) is not required to do this
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Give notification of acceptance
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Ways to Make Offers Less Wimpy (less able to be revoked)
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(1) Option Contract
(2) Option Contract Created by Part Performance (3) Reliance Creates Option Contract (4) Firm Offer (Merchants Only) |
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Has the Offer Terminated
Death of Offeror/Offeree |
SPECIAL RULE for OPTION CONTRACTS
Power of acceptance under the option contract not terminated by death of offeror, and his estate may still carry through the deal. BY LAW: Offer only survives death of offeror, not offeree. BUT MAJORITY: Would probably say it survives the death of either. |
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By law, an option contract will only survive ____________, not the ______________.
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(1) Death of an Offeror
(2) Death of an Offeree |
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Two Old Common Law Approaches to Counter-Offers (Forms with New Terms between Parties)
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(1) Mirror Image Rule
(2) Last Shot Advantage |
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Has the Offer Terminated
Counter-Offers General Rule |
A proposal to accept, or an acceptance, upon terms varying from those offered, is a rejection of the offer, and puts an end to the negotiation.
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Has the Offer Terminated
Counter-Offers Exception: A proposal to accept, or an acceptance, upon terms varying from those offered, is a rejection of the offer, and puts an end to the negotiation, unless: |
(1) Party who made the original offer (The offeror) renews the offer
OR (2) Offeror assents to the modification suggested. |
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Has the Offer Terminated
Counter-Offers following Rejection of Counter-Offer by Offeror Livingstone v. Evans: The Defendant did not accept Plaintiff’s counteroffer, but wrote back that he “cannot reduce the price,” rather than just saying “I decline.” |
A counter-offer acts as a rejection to the original offer, but a rejection of the counteroffer MAY act as a renewal of the original offer. (Livingstone v. Evans)
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Counteroffers are always rejections (which terminate the offer) under this rule
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Mirror Image Rule
In order for a communication to be an acceptance, it must mirror the offer (For non-commercial entities) |
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Under Mirror Image Rule (Counteroffers), any _____________________ is considered to kill the offer.
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Deviation in Terminology
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Make sure you do this for counter-offers
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Address Both Sides
(1) Yes, this is a counter offer (2) On the other hand, this may not be a counter-offer |
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Old Approach to Counter Offers
Last Shot Advantage |
When parties exchange forms with conflicting terms, if the deal eventually gets done, the last form submitted is considered to be the offer that was accepted (either when seller ships goods or when buyer accepts delivery)
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Again, what are the old approaches to counter-offers under common law?
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(1) Last Shot Advantage
(2) Mirror Image Rule |
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Resolution to Issue of Forms with New Terms Between Parties
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Battle of the Forms Provision
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Resolution to Issue of Forms with New Terms Between Parties
Battle of the Forms Provision |
(1) An explicit or implicit acceptance on a form is valid even though it states different terms than the original form, unless offeree expressly makes his acceptance conditional on offeror’s assent to the additional or different terms.
(2) The additional terms are to be construed as proposals for addition to the contract. Between dual merchants such terms become part of the contract unless: (a) the offeror expressly limits acceptance to the terms of the offer; (b) the new terms 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. (3) Conduct by both parties which recognizes the existence of a contract is sufficient to establish a contract even when the writings disagree. |
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Battle of the Forms Provision
An explicit or implicit acceptance on a form is valid even though it states different terms than the original form, unless the offeree does this: |
Expressly makes his acceptance conditional on offeror’s assent to the additional or different terms.
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Battle of the Forms Provision
If a counteroffer changes terms, but don’t make these changes conditional to their acceptance, what's the result? |
It’s still treated like an acceptance (you have a contract)
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Battle of the Forms Provision
If you make your acceptance conditional on the offeror’s assent to your new terms but you never get that assent, what is the result |
It is a counteroffer and then there is no contract, unless you perform without getting the assent.
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Battle of the Forms Provision
Between non-merchants, additional terms are to be construed as this. |
Proposals for addition to the contract (Not binding unless parties agree)
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Battle of the Forms Provision
Between merchants, additional terms are generally construed as __________________. |
Becoming party of the contract
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Battle of the Forms Provision
Between merchants, additional terms are generally construed as becoming part of the contract unless: |
(a) the offeror expressly limits the offeree's ability to accept based on the terms of the offer;
(b) the new terms 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. |
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Battle of the Forms Provisions
KEY NOTE: If not between merchants, the new terms are treated like this... |
Do not become part of the contract (just proposals) unless the other party expressly assents.
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Battle of the Forms Provisions
Conduct by both parties which recognizes the existence of a contract _____________________________. |
is sufficient to form a contract even the writings disagree.
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Battle of the Forms Provision
The parties by their behavior can do this. |
Create a contract even when the writings disagree
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If parties behavior are used to create a contract when the writings disagree, what are the terms?
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Revert back to the communications to focus on where they agreed, and the terms on which they do not agree are dropped out of the transaction.
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Unstated Terms of an Offer
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Terms inside a box are considered to be an offer, and those terms (like 30 days) are controlling when the time period passes by.
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Unstated Terms of an Offer
Do parties need to read the contract for it to binding? |
NO
Parties are bound by terms of a contract, even if contract is not read |
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Unstated Terms of an Offer
Competent Adult Rule |
Adults are bound by documents, so long as not unconscionable, whether read or unread.
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When are contractual acts effective?
Offer (by Offeror) |
When it is received: Notification to other Party is Received
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When are contractual acts effective?
Revocation of Offer (by Offeror) |
When it is received: Notification to other Party is Received
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When are contractual acts effective?
Rejection of Offer (by Offeree) |
When it is received: Notification to other Party is Received
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When are contractual acts effective?
Counter-Offers (by Offeree) |
When it is received: Notification to other Party is Received
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When are contractual acts effective?
Acceptance (by Offeree) |
On dispatch (in some situations)
--- Unless notification is not required by other party and can only be accepted by performance or silence. |