Offer – clear, concise, to one person
Economic relationship à example, landlord tenant, employer/employee, buyer/seller
In Lonergan, buyer/seller
Rule à the seller won because seller didn’t offer
Ad was not an offer because it was too widespread; too many people had access to it
Example
Would lay people say seller was offering?
Did the seller make an offer? (Contract law terms)
Rule
To offer is to invite a deal (willing to sell)
If buyer’s “yes” will make a binding contract
Scolnick
Yes, seller wanted to sell land
No, buyer’s “yes” would be insufficient
**Hypo – “I’ll sell you, Courtney, my used casebook for $50”
Yes
Yes, buyer’s “yes” is sufficient
**Hypo – “I’ll sell you, Courtney, my used casebook for a price we may decide later”
Yes
No, further communication is necessary from seller/buyer
**Hypo – Post a fringy ad – “Will sell my used casebook for $50”
Yes
No, further communication (assent) is necessary
3 communications could be an offer à what do they contain?
Ad
Letter 3/26
Letter 4/8
R. 24
When we cover
An offer is the manifestation of willingness to enter into a bargain
What shows à action/words; not thoughts/intent
So made as to justify another person in understanding his assent to that bargain
“Yes”
Is invited and will conclude (end) it (the deal)
Conclude (deal, treaty, marriage, alliance), end, finish
Lonergan
Seller/Offeror – specific words in instrument
Contains
Expect “yes” to conclude a deal?
Ad; not definite; no price
Has land, needs cash, 40 acres
No à Ads are usually mere requests for offers (see Lefkowitz for exception)
Letter 3/26; “this is a form letter”
Property description, directions, price, “this is a form letter”
No à Indicates sent to multiple/many people like a “fringy ad” – tells each buyer of others
Letter 4/8; “I expect to have a buyer in a week or so”
Confirms location, legal description; escrow ok, “act fast,” buyer expected soon
No à Could be any buyer; not specific to Lonergan
**Hypo – 3/26 letter, does not say form letter
No à Has facts but no words or commitment to this specific buyer
**Hypo – 4/8 letter didn’t say “I expect a buyer in a week or so” and says “if you accept within a week, it’s yours”
Yes à specifically commits to this buyer
**Hypo – Chip wholesaler; “you are one of my six best customers, writing this form letter to, just got these great chips in. I promise you each a ton of chips for $2,500. Pick them up at ____. Just sign at the bottom and return it and it’s yours.”
Yes à very specific, says explicitly that assent will conclude the deal
Lefkowitz v. Great Minneapolis Surplus Store
Lefkowitz à plaintiff, buyer, wins
Store à defendant, seller, loses
Specifics
Conclusion
For buyer to expect that “yes: will conclude
Seller’s manifestation with second ad
Yes, offer
1. – Clear, definite statement that leaves nothing open for negotiation?
2. – Buyer/offeree worried about other buyers?
1st ad – “first come first served”
Yes, offer
1. – Yes
2. – Yes
2nd ad; drop “first come first served”
No
1. – No, no commitment to one specific buyer
2. – Yes
Notification of Acceptance
Hendricks v. Behee (effectively Smith v. Behee) à GOOD EXAM HYPO
What
K?
Why?
3/2 – buyer signs and makes offer
No
No acceptance yet
3/4 – seller signs the agreement and tells his real estate agent
No
No notice of acceptance to offeror yet
**Hypo – on 3/4 seller communicates acceptance to buyer
Yes
Acceptance is effective before offer revoked
3/5 – buyer told seller’s agent his offer was withdrawn
No
Offer was withdrawn before acceptance was communicated
Ever-Tite Roofing Corp. v. Green
Ever-Tite – plaintiff, contractor, wins
Green – defendant, customer, loses
Even without (early) notice, acceptance by performance is effective.
Question
Ever-Tite case specifics
Who drafted offer?
P’s form
Who is the offeror?
Green (E-T is deciding if they want into a contract)
Did offeror ever want to revoke?
Yes, had someone else doing the work
Did offer tell method of acceptance?
Yes, written acceptance OR commencing performance of work
When did acceptance occur?
When P loaded truck, found workers, etc. à sound of acceptance was the crash of tools being loaded into the truck
R. 50
Acceptance à manifestation of assent to terms of offer in a manner required or allowed by the offer
Acceptance by performance requires at least part of the offer requirement to be performed
Acceptance by promise à offeree complete every act essential to making a promise
R. 54(1) – notification is unnecessary to accept by performance unless offer requests it
R. 56 – acceptance by promise necessitates notification – MUST BE COMMUNICATED
Method of Acceptance
Ammons v. Wilson & Co.
Ammons à plaintiff, buyer/wholesaler, wins
Wilsonà defendant, seller/meat packer, loses
Acceptance by silence
Date
Step
O? A?
Early August
Tweedt “books” for 60k pounds shortening for 7.5 cents per piund
Not offer
8/23
Buyer orders for prompt shipment 43,942 pounds
Yes, offer à specific, non-negotiable; “yes” concludes the deal
Between 8/23-9/4
9/4
Yes, offer à acceptance had occurred, there is a K (R.1)
Previous dealings à seller didn’t say anything and good were shipped
Prior pattern of silence signifying acceptance
No history of silence as acceptance = no K
Corinthian v. Lederle (pharmaceuticals; shipment of non-conforming goods; UCC 2-206)
Corinthian à plaintiff, buyer, wants K, loses
Lederle à defendant, seller, doesn’t want K, wins
Common law controls land, services, intangibles
UCC controls goods
R69 – when silence is acceptance
“Varying” Acceptance
Minneapolis R. v. Columbus
Minneapolisà plaintiff, buyer, loses
Columbusà defendant, seller, wins
Varying acceptance
Communication
Content
O? A?
12/5 – P’s letter
Inquiry
Not offer
12/8 – D
2k-5k @ price, if accepted by 12/20
Offer
**Hypo – 12/13 P telegram, orders 2k tons
Acceptance; K formed
**Hypo – 12/13 P telegram
Orders 2k; wants a warranty
Varying acceptance by requiring warranty
**Hypo – 12/13“Inquiry without rejecting offer”
Inquiry, without rejecting offer, would you do 1200?
Does not reject; does not accept – following letter on 12/16 would act as acceptance
12/16 – P
Orders 1200 @ given price
Varying acceptance; not offeror’s quantity
12/18 – D
Nope, can’t do it
Counter-offer rejected
12/19 – P
Orders 2k
Not effective acceptance; offer gone
Idaho Power v. Westinghouse
Idaho Power à plaintiff, buyer, loses
Westinghouse à defendant, seller, wins
P says order is not effective acceptance because it was conditioned on certain terms differing from offer
P claims varying acceptance
UCC 2-207 rejects “mirror image” rule
P’s order accepted price, and shipping within D’s offer
No further written transactions
It was “seasonable acceptance” just with additional terms requested
P’s order did not expressly made assent conditional on addition of terms
A P must make it clear that P is unwilling to accept unless the terms are added/changed
Saying “subject to X terms and conditions…” is not enough
Conflicting terms on forms cancel out, leaving court o decide contested item
P’s form did not contest D’s liability limitations
Did not nullify disclaimer
Arguments:
P à no K from forms
D à K on forms
Varying acceptance
Price à T&C on back; disclaimer of liability over price of item
Buyer’s form à Purchase order, no statement about liability
Seller à 2-207 rejects the mirror image rule for goods
Yes, it is a varying acceptance
2-207 – acceptance with added terms (1/3 decide if K is made
Argues purchase order is not seasonable expression – says restricted to “our terms and supercedes all previous”
P says this makes acceptance conditional
Material difference before conditional” argument
2-207 (1) says acceptance with added terms is valid as long as not conditioned; definite and seasonable expression
Agreed on product, price, quantity, delivery date à definite expression of acceptance
Must be stated to be conditional
Battle of the Forms à Terms
In General
Textile Specifics
Glassrobots Specifics
2 forms
Revokes offer; debtor has not yet effectively accepted (has not yet met the terms of acceptance, i.e. – handing over the cash)
**Hypo – Late May
Debtor shows up, hands over cash before creditor says anything
Terms of acceptance have been met; there is a K
Adams v. Lindsell (“Mailbox Rule” case)
Adamsà plaintiff, buyer (manufacturer), wants K, wins
Lindsell à defendant, seller of wool, doesn’t want K, loses
When
What
Effect
Tuesday 9/2
Seller makes offer to sell wool, by letter
Offer
Friday 9/5
Buyer receives offer in the mail
Offer
Friday 9/5
Buyer sends acceptance of offer
Acceptance
Sunday 9/7
Sellers expects an acceptance
None
Monday 9/8
Sellers sell the wool to a third party
Breach
Tuesday 9/9
Seller receives buyer’s acceptance
Out of Possession
Not
Mailing a letter; puts the acceptance out of your own control
Hendricks; given to your own agent (it’s like talking to yourself in a closet)
Dropped out of a plane
Insufficient Agreement
Indefinite Agreements
Varney v. Ditmars
Varney à plaintiff, employee, loses
Ditmars à defendant, employer, wins – the agreement was too indefinite
There is an indefiniteness problem when both parties agree to something indefinite. i.e. – “mirror image” is satisfied, but unclear what each party means by it (class ex. – “get romantic”)
Cardozo
Majority
What type of views (context)
Modern
Strict
Should P get salary/profits
No profits in this case ($1,400); should get salary ($280)
No profits, no salary for work through December
Other examples
UCC 2-204(3)
R. § 33
(R. 33(1) is similar to UCC 2-204(3))
Martin’s Deli case – includes discussion of case called May Metropolitan (also in Oglebay)
(Next class)
Oglebay
Empro
MGM v. Scheider
MGM à plaintiff, employer, wins
Scheider à defendant, employee, loses
Indefinite term – when the TV series would start filming
Important because it effects when/if he can accept other jobs
Is an essential term
Court recognizes it as an essential term, but says they need to consider the industry standard/custom
Executory – “Did you do it?” “Not yet.” Or “Yes I did it”
Executory = to be performed
Executed contract = has been performed
Martin’s Deli v. Schumacher
Martin’s Deli à plaintiff, tenant (lessee), loses
Schumacher à defendant, landlord (lessor), wins
No definite agreement to renew existing lease agreement
Interests opposed
Martin’s Deli Case
May Metropolitan Case
Subject of case
Renewal for real estate
Renewal of oil burner franchise (effectively, goods)
Words in renewal clause (not the big issue) – open term in both
“to be agreed upon”
“to be mutually agreed upon”
Found definite enough?
No
Yes
Factors that go into it
No course of dealing; realty sold; real estate has its own laws/formalities – not the UCC
Course of dealing (series of renewals); goods (franchises) sold; foreshadows UCC 2-204
Case
1. – UCC 2-204(3); intent to be bound
2. – UCC 2-204(3); reasonably certain terms
Conclusion “definite enough for binding K”
