CHOICE OF LAW
• Test to determine UCC or Common Law
→ Whether the predominant purpose of the transaction is, reasonably stated…
–Rendition of service, with goods incidentally involved
(contract with artist for painting)
–Or is it a transaction of sale, with labor incidentally involved
(installation of a water heater in a bathroom)
• Factors taken into accout to determing UCC or Common Law
(1) Language of the contract
(2) Nature of the business of the supplier
(3) intrinsic worth of the materials
(4) Does the essence of the complaint arise from performance or services or goods
Sold
Mutual Assent: principles and issues
• Offeror offers to Offeree who has the Power of Acceptance;
Must be a meeting of the minds (there is an agreement to the same bargain at the same
Time, lonergan v scolnick)
Offer and Acceptance: Major issues
→ Were the parties in preliminary negotiation or was there an offer?
• 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 a further manifestation of assent.
• An offer is the manifesation of willingness to enter into a bargain, so made as to
justify another person in understanding that his assent to that bargain is invitted and will conclude it. (Rest. 2d § 24)
à Elements of an offer
1) Communication to an identified offeree
2) that describes a bargain
3) where the offeror expresses an intent to be bound to the bargain
4) and invites assent to the bargain
à Factors to consider
• Language: ex, word ‘offer’ helps but is not dispositive
• Relationship of parties
• Course of dealing
• Past practices
• Detail of terms: more te better
à Offeror is master of the offer, Normile v Miller
à Offeree must have knowledge of the offer to accept
→ Were the terms certain and definite and communicated to the offeree?
• Certainty: defined in Rest. 2d § 33 via:
(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 or more terms of a proposed bargain 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
• Terms considered to determine whether a K is certain and definite
– Identity of offeree,
– Subject matter,
– Price,
– Time of payment, delivery or performance,
– Quantity,
– Naure of work to be performed
• Intent to form a contract:
In determining whether parties intended to reduce agreement to writing, following
factors may be considered
– Whether type of agreement involved is one usually put into writing
– Whether agreement contains many or few details
– Whether agreement involves large or small amount of money
– Whether agreement requires formal writing for full expression of covenants
– Whether negotiations indicate that formal writtendocument was contemplated at completion of negotiations;
• Test for s
ower of acceptance]
• The acceptance must be absolute, unequivocal and unqualified
acceptance of and every term of the offer
• Rest 2d § 35:
(1) An offer gives to the offeree a continuing power to complete the
manifestation of mutual assent by acceptance of the offer
(2) A contract cannot be created by acceptance of an offer after the power of acceptance has been terminated in one of the ways listed in §36
• Invitaion of promise or performance, Rest §32:
• In case of doubt an offer is interpreted as inviting the offeree to accept
either by promising to perform what the offer requrests or by rendering the performance, as the offeree chooses
• Conduct as manifestation of assent, Rest § 19:
(1) Tne manifestation of assent may be made wholly or partly by written
or spoken words or by other acts or by failure to act, Princess Cruises, Inc. v General Electric, Inc.
• Rest 2d § 69 Acceptance by silence or exercise of Dominion
(1) Silence and inaction operate as an acceptance in the following:
(a) Where an offeree takes the benefit or offered services
(b) Offeror has stated or given the offeree reason to understand that
assent may bemanifested by silence or inaction and the offeree
in remaining silent and inacive intends to accept the offer
(c) Because of previous dealings it is reasonable to do so
