Meyerson – Contracts – Fall 2014
COMMON LAW
What is an OFFER – a manifestation of intent to enter into a bargain made such that the other person will understand that his assent concludes the deal.
What is NOT an offer?
1. “offers” made in jest
a. would a reasonable offeree have known that the offer was made in jest? If so, no contract.
2. advertisements (unless limiting language) RS 26
a. did the advertisement use language like “first come, first served” or “only 10 available?” – if so, then advertisement IS offer. If not, then advertisement is NOT an offer.
3. form letters (unless limiting language)
a. did the form letter use limiting language? If so, then offer. If not, then form letter is NOT an offer.
4. promises made by professionals (unless that promise is used to coerce)
a. did the doctor/lawyer/professional use his promise to coerce the offeree into accepting? If so, then promise is an offer. If not, it is a mere hope of success.
5. Quotations for price (usually)
6. if the offeree has reason to believe that his assent will NOT conclude the deal
a. if the offeror makes it clear that they are discussing preliminary negotiations, then it’s not an offer. RS 26
What is an ACCEPTANCE – a manifestation of assent to the terms of the contract as laid out by the offeror in a manner that is invited or required by the offeror
How long does the offeree have to accept an offer (if no time is stated)?
1. a reasonable time UNDER THE CIRCUMSTANCES
2. until the offeror validly revokes the offer
3. until there is a counter-offer (which revokes the power of acceptance)
4. death of either offeror or offeree
How long does the offeree have to accept an offer (if time IS stated)?
1. Was there consideration?
a. Yes – then the offer lasts until the specified time
b. No – then the offeror may revoke at any time prior to acceptance
2. Has the offeror acted in a manner such that the offeree will know that the offer is off the table (i.e. has the offeree learned that the offeror already sold his land)?
a. Yes – then the offeree may not accept
i. Direct revocation – the offeree finds out DIRECTLY from the offeror that the offer has been revoked (any time prior to acceptance)
ii. Indirect revocation – the offeree finds out from a RELIABLE SOURCE that the offeror has revoked his offer (any time prior to acceptance)
b. No – the offeree may still attempt to accept
i. Does offeree accept before offeror says “offer off the table”?
1. Yes – then offeror is in breach
2. No – then offeror is not in breach
3. Did the offeree accept in the form invited or required by the offeror?
a. Yes – valid acceptance
b. No – counter-offer
i. Counts as a rejection of offer
Valid forms of acceptance: must be an exchange!
1. unilateral contract (I will pay if you catch bad guy – promise would be uncertain)
a. learn of offer prior to beginning perfor
ree never explicitly says “I accept”
3. Doubtful contract – (unclear whether performance of promise is expected)
a. Accept by promise
i. As soon as you promise to render performance, the contract has been formed
b. Accept by performance
i. As soon as performance has begun, it is an acceptance.
1. This functions as a promise to complete performance.
2. If you do not complete performance, you are in breach
a. How long do you have to complete performance?
i. A reasonable time under the circumstances.
4. Has a memorial been contemplated?
a. Yes – where was the contract formed?
i. Acceptance specifically conditioned to written contract?
1. Yes – no contract until written
2. No – contract as soon as there’s a meeting of the minds
a. Did they intend to be bound prior to the written memorial?
a. How to determine intent to be bound
i. What did they say
ii. What did they do
iii. What did they agree upon
iv. What do they normally do under similar circumstances
b. As soon as mutual assent is reached, in the event that no intention has been displayed by either party, the courts like to say there is a contract.
