I. K (through the front door)
Ø §1 Def of K
Ø §2 Def of Promise
o Actual vs.
o Mere expression of intention
a. Types
i. Express- formed by language, oral or written
1. Proceed to b
ii. Implied in fact- formed by manifestations of assent other than oral or written i.e. conduct
1. Proceed to b
iii. Implied in law- not true k; quasi k; an obligation imposed by the law without regard to either’s expressed expressions of assent either by words or act; not requested
1. Proceed to III
b. MA and C (§17)
i. §20
ii. Subjective v. objective
1. Subjective- “meeting of the minds”
2. Objective- preferred, cannot get into the minds of others, cts will look for signatures, nodding of head, externals that display mutual assent; rp
a. P. 180 Ray v. Eurice Bros- The test for true interpretation an O and A is not what the party making it THOUGHT it meant or INTENDED it to mean, but what a RP in the position of the parties would have thought it meant
i. The Court held signing a k by a party having the capacity to understand, shows manifestation of assent and party is bound by signature. Although ∆ claims they made a mistake as to the ∏’s changes in specs for the building of a house, ∆ is bound by his signature to the k, for the signature satisfied the objective test that ∆ knew or should have known the details of the k. ∆ Interpretation or intention is merely subjective. No real meeting of the minds, but that is not the test.
iii. P. 180 no intention that a promise be legally binding is required for formation (§21)
iv. Typically evidenced by O and A (§22)
1. Offer §24
a. Offeror is creator of the power
i. Power of acceptance §29 & §52 & §58
ii. Form of acceptance required §30 & §60
1. Prescribed- must v.
2. Request or suggest
iii. Lapse in time
1. Offeree must accept during the time frame prescribed by offer, or if there is not one
2. Within a reasonable time §41
a. Depending on circumstances
b. Unless otherwise stated by lang. or circumstances or §49 an offer sent by mail is seasonably accepted if the acceptance is mailed at any time before midnight on the day on which the offer is received
c. Delay §49
b. Preliminary negotiations
i. §26
ii. P. 181 Lonergan v. Scolnick- Intentions to negotiate with no definite offer constitute preliminary negotiations and are merely “invitations to offers”
1. The Court held correspondence sent between ∏ and ∆ were preliminary negotiations. The first ltr, a form letter clarifies the ad and advises how to locate the property. The subsequent ltr answered some questions and advised the ∏ to act fast, which clearly indicates the ∆’s intention to sell on a first come first serve basis. (offer w/ condition)
c. Certainty §33- terms must be reasonable certain
i. Essential terms include
1. Identity of the offeree
2. Subject matter
3. Price
4. Time of payment, delivery or performance
5. Quantity involved
6. Nature of work
7. NOT all essential terms are necessary
d. Ads- typically invitations to offers but,
i. P. 181 Izado v. Machado- this situation invokes the idea that a binding offer may be implied from the very fact that deliberately misleading advertising intentionally leads the reader to the conclusion that one exists.
1. The Court held consistent to the objective theory, contrary to traditional law that ads are NOT offers, the ad was interpreted as possibly conveying to a reasonable reader the impression that the ∆ was offering to sell any car on its lot for the listed price minus a $3000 allowance for any trade-in vehicle, and the communication should be interpreted as a rp would interpret it, regardless of the secret intention of the ∆.
2. Bait and switch against PP
e. Allegedly binding offers must be viewed as a whole
f. Serious v. Joke
i. Objective standard- rp
ii. P. 181 Leonard v. Pepsico- completion of order form is the offer, which was not accepted by ∆. Not definite enough for ad to be offer, because I specially reserved details to the catalog.
1. The Court held no rp could have understood that the jet plane shown in the ad was seriously offered as a premium for purchase of ∆ soft drinks
g. Termination of offer by offeror §36
i. Revocation- termination by offeror; effective when RECEIVED by offeree §42
1. Direct communication
a. Petterson v. Pattberg- Any offer to enter into a unilateral k may be withdrawn before act requested to be done has been performed
i. The Court held that offer was payment in full and that very act was the only one prescribed and saying or intending to pay (even on the doorstep) of mortgagor’s house was not completion of the requested act and mortgagor was free to revoke at any time prior to tender of payment (offer of payment v. tender of payment)
ii. note: reverse argument- mortgagor made it impossible to comply with terms of the offer by not answering the door to accept payment (Williston- “it is a principle of fundamental justice that if a promisor is himself the cause of the failure of performance either of an obligation due him or condition upon which his own liability depends, he cannot take advantage of this failure.”
2. By publication- through comparable means
3. Indirect communication §43
a. Offeree receives correct information (knowledge)
b. From a reliable source
c. Of acts of the offeror that would indicate to a rp that the offeror no longer wishes to make the offer
i. Default if no statute
ii. Limits- expressly states revocable, bid shopping, bid chopping, cts pretty limited in application to context of bids
4. Firm offers- irrevocable by statute UCC § 2-205 ( no C needed)
a. Applies to buyers and sellers
b. Meets the description of “firm”- assurance it will be held open
c. If stated, could be less than 3 months, but not to exceed 3 mos.
d. Signed, at least initialed
e. No reliance necessary
h. Termination by offeree; effective when RECEIVED by offeror §36
i. Rejection §38
ii. Counteroffers §39 & §59
1. Counteroffer with express rejection
a. I.e. Not at that price, but I’ll take it at $200
2. Conditional acceptance upon additional terms
a. I.e. I’ll take it at that price, but only if it is also equipped with air conditioning
b. Normile v. Miller- The effect of such an acceptance conditioned is to make a new counter-proposal upon which the parties have not yet agreed, but which is open for acceptance or rejection. Such a reply from the seller is actually a CO and a rejection of the buyer’s offer.
i. The court held where vendor changed purchaser’s original offer for land in several material aspects, most notably terms regarding payment of the purchase price, the qualified acceptance was in reality a rejection of purchaser’s original offer, and additionally amounted to a CO.
3.
a.
2. Acceptance
a. Defined §50
i. Bilateral- promise for a promise
1. Notification §56
2. Unless specified that performance by act is the only way to accept, construe as bilateral §32
ii. Unilateral- promise for performance; acceptance and consideration is completion of the requested act
1. Formation (modern view)
a. Offeror clearly indicates completion of performance is the only manner of acceptance
b. Offer to the public- such as rewards
2. I.e. Brooklyn bridge
3. Classical- Promisor is bound only when promisee completes the act.
4. Modern- part performance
