Formation
Manifestation of Assent
What is the rule?
Uses the objective theory, only need to MANIFEST assent, not actually possess it. How the reasonable person in the position of the other party would construe your actions.
Your actual subjective wishes have no bearing on whether you manifest your assent.
UCC
Exactly the same analysis, since UCC §2-204 says a K can be made in any manner even if the moment of its formation is undetermined.
What is the authority for the rule?
Embry v. Hargadine, McKittrick Dry Goods Inc.
Examples
Jokes and Advertisements are not considered offers usually. (there is a limited supply, and if everyone accepted the offer there would not be enough to perform)
Exception: Offers of rewards
Definiteness
What is the rule?
Is there enough in the contract to actually be a contract, and such that there is a basis for giving a remedy.
Ambiguity in determining whether there is a manifestation of assent may suggest indefiniteness.
What is the authority for the rule?
Restatement (Second) Contracts §33
(1) Even though a manifestation of intention is intended to be understood as an offer, it cannot be accepted so as to form a contract unless the terms of the contract are reasonably certain
(2) The terms of a contract are reasonably certain if they provide a basis for determining the existence of a breach and for giving an appropriate remedy.
(3) The fact that one ore more terms are left open or uncertain may show that a manifestation of intention is not intended to be understood as an offer or as an acceptance.
UCC §2-204(3)
Even though one or more terms are left open a contract for sale does not fail for indefiniteness if the parties have intended to make a contract and
n of acceptance under the terms of the offer.
Authority: Restatement (Second) Contracts §36
Manner of acceptance and counter-offers
Acceptance must be of the precise offer or else it is a counter-offer (common law “mirror image rule”):
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.
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 to the offeree.
Authority: Restatement (Second) Contracts §39
