Reading...
Play button
Play button
Use LEFT and RIGHT arrow keys to navigate between flashcards;
Use UP and DOWN arrow keys to flip the card;
H to show hint;
A reads text to speech;
33 Cards in this Set
- Front
- Back
|
The mechanics of a bargain --- offer and revocation
Restatement 24 Definition of an offer |
An offer is:
1) the manifestation of willingess to enter into a bargain 2) so made as to justify another person in understanding: a) that his assent to that bargain is invited b) and will conclude it |
|
|
The mechanics of a bargain--offer and revocation
Restatement 26 Preliminary negotiations |
A manifestation of willingness to enter into a bargain is not an offer if the person to whom it is addressed knows or has reason to know that the person making it does not intend to conclude a bargain until he has made further manifestation of assent.
|
|
|
Termination of the offeree's power of acceptance:
Restatement 38 Rejection |
1) an offeree's power of acceptance is terminated by his rejection of the offer, unless the offeror has maifestated a contrary intention.
2) A manifestation of intention not to accept an offer is a rejection unless the offerree manifests an intention to take it under further advisement. |
|
|
Termination of the offeree's power of acceptance:
Restatement 39 Counter offers |
1) A counter-offer is an offer made by an offeree to his offeror relating to the same matter as the original offer and proposing a substituted bargain differing from that proposed by the original offer
2) An offeree's power of acceptance is terminated by his making of a counter-offer, unless the offeror has manifested a contrary intention or unless the counter-offer manifests a contrary intention of the offeree. |
|
|
Termination of the offeree's power of acceptance
Restatement 41 Lapse of Time |
1) an offeree's power of acceptance is terminated at the time specified in the offer, or, if no time is specified, at the end of a reasonable time.
2) What is a reasonable time is a question of fact, depending on all the circumstances existing when the offer and attempted acceptance are made. 3) Unless otherwise indicated by the language or the circumstances, and subject to the rule stated in R49, an offer sent by mail is seasonably acccepted if an acceptance is mailed at any time before midnight on the day on which the offer is received. |
|
|
Termination of the offeree's power of acceptance:
Restatement 59 Purported acceptance which adds qualifications |
A reply to an offer which purports to accept it but is conditional on the offeror's assent to terms additional to or different from those offered is not an acceptance but is a counter offer.
Usually terminates the power of acceptance of the original offeree. |
|
|
Introduction and interpretation
Restatement 201 Whose meaning prevails |
1) where the parties have attached the same meaning to a proise or agreement or a term thereof, it is interpreted in accordance with that meaning.
2) Where the parties have attached different meanings to a promise or agerement or a term thereof, it is interpreted in accordance with the meaning attached by one of them if at the time the agreement was made: a) that party did not know of any different meaning attached by the other, and the other knew the meaning attached by the first party; or b) that party had no reason to know of any different meaning attached by th eother, and the other had reason to know the meaning attached by the first party. is bound by th emeaning attached by the other, even though the result may be a failure of mutual assent. 3) except as stated in this section, neither party |
|
|
Introduction and interpretation
Restatement 20 Effect of misunderstanding |
There is no manifestation of mutual assent to an exchange if the parties attach materially different meanings to their manifestations and
a) NEITHER PARTY knows or has reason to know the meaning attached by the other b)EACH PARTY knows or each party has reason to know the meaning attached by the other. 2) The manifestations of the parties are operative in accordance with the meaning attached to them by one of the parties if a) that party does not know of any different meaning attached by the other, and the other knows the meaning attached by the first party; or b) that party has no reason to know of any different meaning attached by the other, and the other has reason to know the meaning attached by the first party. |
|
|
mutual assent is manifested by:
|
offer and acceptance
|
|
|
Termination of the offeree's power of acceptance
Restatement 37 Termination of power of acceptance under option contract |
Notwithstanding Restatement 38 - 49 , the power of acceptance under an option contract is not terminated by rejection or counter-offer, by revocation, or by the death or incapacity of the offeror, unless the requirements are met for the discharge of a contractual duty.
|
|
|
Termination of the offeree's power of acceptance: revocation
Restatement 42 Revocation by communication from offeror received by offeree |
An offeree's power of acceptance is terminated when the offeree receives from the offeror a manifestation of an intention not to enter into the proposed contract.
|
|
|
Termination of offeree's power of acceptance
(5) ways |
1) rejection
2) counter-offer 3) lapse of time 4) revocation by offeror 5)death or incapacity by either party |
|
|
Examples of an offer
|
Clear, definite, and explicit. Nothing left open to negotiation.
|
|
|
Example of not an offer
|
1) no amount or quantity specified
2) form letters (Lonergan v. Skolnick) 3) sign for switchblade knife in window (Fischer v. Bell) 4) Advertisement letter "we are authorized to offer salt at 85 cents per barrel, we shall be pleased to reeive your order" LANGUAGE TOO GENERAL AND OFFERED TO TOO MANY PEOPLE 5) Appointments for haircuts, car dealers, dinner reservations, etc. |
|
|
Termination of the offeree's power of acceptance: revocation
Restatement 43 Indirect communication of revocation |
An offeree's power of acceptance is terminated whent he offeror takes definite action inconsistent with an intention to enter into the proposed contract and the offeree acquires reliable information to that effect.
CASE EXAMPLE: |
|
|
Termination of the offeree's power of acceptance: revocation
Restatement 45 Option contract created by part performance or tender |
1) Where an offer invites and offeree to adccept by rendering a performance and does not invite a promissory acceptance, an option contract is created when the offeree tenders or begins the invited performance or tenders the beginning of it.
2) The offeror's duty of performance under any option contract so crearted is conditional on completion or tender of the invited performance in accordance with the terms of the offer. EXAMPLES: |
|
|
Termination of the offeree's power of acceptance: revocation
Restatement 87 (2) Option contract |
An offer which the offeror should reasonably expect to induce action or forbearance of a substantial character on the part of the offeree befiore acceptance and which does induce such action or forbearance is binding as an option contract to the extent to avoid injustice.
EXAMPLES: |
|
|
The Mechanics of a bargain--transacting at a distance
Restatement 30 Form of acceptance invited |
1) An offer may invite or require acceptance to be made by an affirmative answer in words, or by performing or refraining from performing a specified act, or may empower th eofferee to make a selection of terms in his acceptance.
2) Unless otherwise indicated by teh language or the circumstances, an offer invites acceptance in any manner and y any medium reasonable in the circumstances. |
|
|
The Mechanics of a bargain--transacting at a distance
Restatement 49 Effect of delay in communication of offer |
If communication of an offer to the offeree is delayed, the poeriod within which a contract can be created by acceptance is not thereby extended if the offeree knows or has reason to know of the delay, though it is due to the fault of the offeror; bit if the delay is due to the faut of the offeror or tho the means of the transmission adiopted by him, and the offeree neither knows nor has reason to know that there has been a delay, a contraact can be created by acceptance within the period which would have been permissible if the offer had been dispatched at the time that its arrival seems to indicate.
|
|
|
The Mechanics of a bargain--transacting at a distance
Restatement 60 Acceptance of offer which states place, time, or manner of acceptance |
If an offer prescribes the place, time, or manner of acceptance its terms in this respect must be complied with in order to create a contract. If an offer merely suggests a permitted place, time, or manner of acceptance, another method of acceptance is not precluded.
EXAMPLE: if offeror prescribes exact way in which to accept offer and it is accepted in any other way, it constitutes a counter-offer. |
|
|
The Mechanics of a bargain--transacting at a distance
Restatement 63 Time when acceptance takes effect |
Unless the offeror provides otherwise ,
a) an acceptance made in a manner and by a medium invited by an offer is operative and completes the manifestation of mutual assent as soon as put out of the offeree's possession without regard to whter t ever reaches the offeror but b) an acceptance under an option contract is not operative until received by the offeror. |
|
|
The Mechanics of a bargain--transacting at a distance
Restatement 64 Acceptance by telephone or teletype |
Acceptance given by telephone or other medium of substantially instantaneous two-way communication is governed by the principles applicable to acceptances where the parties are in the presence of each other.
|
|
|
The Mechanics of a bargain--transacting at a distance
Restatement 65 Reasonableness of medium of acceptance |
Unless circumstances known to the offeree indicate otherwise, a medium of acceptance is reasonable it if ti the one used byt the offeror or one customary in similar transactions at teh time and place the offer is received.
|
|
|
The Mechanics of a bargain--transacting at a distance
Restatement 66 Acceptance must be properly dispatched |
An acceptance sent by the mail or otherwise from a distance is not operative when dispateched, unless it is properly addressed and in such other precautions taken as are ordinarily observed to insure safe transmission of similar messages.
|
|
|
The Mechanics of a bargain--transacting at a distance
Restatement 67 Effect of receipt of acceptance improperly dispatched |
Where an acceptance is seasonably dispatched but the offeree uses means of transmission not invited by the offer or fails to exercise reasonable diligence to insure dafe transmission, it is treated as operative upon dispatch if received within the time in which a properly dispatched acceptance would normally have arrived.
|
|
|
The Mechanics of a bargain--transacting at a distance
Restatement 68 What constitutes receipt of revocation, rejection, or acceptance |
A written revocation, rejection, or acceptance is received when:
1) the writing writing comes into the possession of the person addressed, or 2)of some person authorized by him to receive it for him, or 3) when it is depositied in some place which he has authorized as the place for this or similar communications to be deposited by him. |
|
|
The Mechanics of a bargain -- transacting at a distance
Restatement 87 (2) Option Contract |
An offer whicht he offeror should reasonably expect to induce action or forbearance of a substantial character on the part of th epfferee before acceptance and which does induce such action or forbearance is binding as an option contract to the extent necessary to avoid injustice.
|
|
|
The Mechanics of a bargain -- transacting at a distance
For an option contract you need: |
Taditional common law device for making an option contract are: consideration (may be nominal) and seal (in modern terms can be a signature).
|
|
|
Termination of the power of acceptance
Restatement 36 |
Things which terminate an offeree's power of acceptance
1) rejection or counter-offer by the offeree 2) lapse of time 3) revocation by the offeror 4) death or incapacity of the offeror or offeree **additionally, offeree's power of acceptance is terminated by the non-occurrence of any condition of aceptance under the terms of the offer. |
|
|
What things constitute a counter-offer?
|
1) Sale of house. Accept but include furniture (Ardente v. Horan -- intent of the parties must be definite and unequivocal)
|
|
|
What does not constitute a counter-offer?
|
1)When buyer releasese the seller of material obligation, it is considerd collateral inquiry (just a question) rather than a conditional acceptance
Rhode Island RR v. Providence RR (Don't remove the railroad tracks and change the name on the offer) 2) Signed under protest (I accept but I don't like it) 3) Requests do not indicate an unwillingness to accept an offer |
|
|
Definition of option contract
|
1) Form: "Can accept anytime until a certain date"
2)To make binding: need consideration to bind subpromise 3) Not usually revokable |
|
|
How to make option contract irrevocable?
|
1) Consideration given for subpromise
2)Sale of goods UCC 2-205 signed in writing -- no consideration needed 3) Part performance (if someone accepts by starting to perform, then that locks in a unilateral contract (promise-->performance). a)Giving the money is part performance, getting financing for the money is not. b)NOTE: Restate 45 only applies when the offeree is seeking acceptance by performance (there was clearly no consideration). 5) Promissory estoppel in the option contract setting. |
