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University of Florida School of Law
Harrison, Jeffrey L.

Contracts Fall 2013
Go over 316-1 in ucc
Ucc=sale of goods; services aren’t under ucc
Abbreviations: K, first letter of parties name or Δ π
5 forty minute questions, points per minute, longer questions either have more reading or have more complicated answers
This dispute will be determined by whether…
No case names except Hadley/Kenford
UNCONTRACTS- Ways to avoid contractual liability other than simply performing the contract.
Promissory estoppel – under 1st restatement you can get expectancy, under 2nd restatement you can get reliance 
Substantial performance – under not sale of goods, you cant stop paying them if they have substantially performed
Types of K
a. Contracts: promise supported by consideration (paid)
i. Unilateral- promise for performance
1. Finishing is acceptance.  Not obligated to finish. 
ii. Bilateral- promise for a promise
1. Beginning performance is acceptance.  Accept when you begin & offeror can’t pull out unless you find an exception
2. If unclear, then it is bi.  Bi is default unless specified.
iii. UCC 2-204 Formation in General- (1) A contract for sale of goods may be made in any manner sufficient to show agreement, including conduct by both parties which recognizes the existence of such a contract.  (2) An agreement sufficient to constitute a contract for sale may be found even though the moment of its making is undetermined.  (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 there is a reasonably certain basis for giving an appropriate remedy.
There was no offer
1.       Re 24: An offer is a manifestation of willingness to enter into a bargain, so made as to justify another person in understanding that his assent to that bargain is invited and will conclude it.
2.       A reasonable person would know I really was joking (objective standard)
a.        BUT See Lucy (Man promised to sell Lucy his farm and claimed it was a joke.  Enforceable because he discussed it for a long period of time, rewrote the draft to include his wife, his wife signed it, examined the title, discussed the sale, and the writing was complete.  If words/actions of one of the parties have but one reasonable meaning, his secret intention is immaterial except when an unreasonable meaning which he attaches to his manifestations is known to the other party)
b.       See Pepsico (holding no offer since item offered was 700,000 for $23 million jet, military use, and expensive to objectively manifest a real offer)
3.       That was not an offer but just a preliminary negotiation
a.        It was just a price quote
                                                   i.      SEE Owen v. Tunison (holding a price quote of “the least I could take” was not an offer)
b.       It was just a mere statemenet of the lowest price I could take, but I wasnt offering it to you
                                                   i.      SEE Harvey v. Facey (holding “lowest price is X” was not an offer when asked if willing to sell item)
c.        BUT if there is more than just a price quote it is likely an offer, like including the quantity
                                                   i.      SEE Fairmount Glass Works (holding offer where per unit price, shipping dates, shipping restrictions,  and quantity were specified along with “for immediate acceptance”)
d.       If liable to over-subscription, maybe not offer
                                                   i.      SEE Kershaw (holding price quote sent to many buyers was a pre-offer since subject to over-subscription by many potential buyers)
e.       BUT under ucc 2-206 (2) where the beginning of a requested performance is a reasonable mode of acceptance an offeror who is not notified of acceptance within a reasonable time may treat the offer as having lapsed before acceptance.
f.         Advertisements are not offers, unless limited in some way. Just invitation by the seller to the buyer to make an offer
1.       But check to see if award also
2.       Advertiser can change price or conditions any time before acceptance
                                                  ii.      SEE Lefowitz (holding an advertisement was an offer since it was limited by first come first serve clause and the ad left no room for further negotiations)    
1.       If ad would of said coats worth “to $100” it would not have been an offer b/c the “to” makes it speculative
iii.   SEE Pepsico – where the advertisement referred viewers to the catalog of Pepsi products & Defendant did not list a Harrier Jet. This catalog was the true offer so the advertisement of the jet was not an offer.
g.        You cant have an uncertainity in the offer
                                                   i.      “could you fix my tire”, “could you possibly do this”, “is it possible for you to do this”…these aren’t really offers
There was no acceptance
Re 50: Acceptance Defined (1) Acceptance is a manifestation of assent to terms in manner invited or required (2) by performance requires at least part be performed (3) A by promise requires complete every act essential.
Re 53: By Performance; intention not to accept 
(1) an offer can be accepted by the rendering of a performance only if the offer invites such an acceptance
(2) UNLESS you can accept by silence, rendering of performance doesn’t constitute an acceptance if within a reasonable time the offeree excercises reasonable diligence to notify  the offeror of nonacceptance.
(3) where an offer of a promise invites acceptance by performance and doesnt invite a promissory acceptance, the rendering of the invited performance does not constitute an acceptance if before the offeror performs his promise the offer manifests an intention not to accept.
Re 54: By Performance; necessity of notification
(1) Where an offer invites an offeree to accept by rendering a performance, no notification is necessary to make an acceptance UNLESS offer requests such notification
(2) if an offeree who accepts by rendering performance has reason to know that the offeror has no adequate means of learning of the performance with reasonable promptness and certainty, the contractual duty of the offeror is discharges UNLESS
 a) the offeree uses reasonably diligence to notify offeror of acceptance or
b) the offeror learns of the performance within a reasonable time or
c) the offer indicates notification of acceptance isn’t required.
1.       The offer was not meant to be communicated to you. It can only be accepted by person whom it invites to furnish consideration
a.        You are not the offeree or his agent
b.       You got the offer, but  I did not intent it for
2.       The offer never got put in the mail.
a.        BUT acceptance is good when its put In mailbox
b.       If theres a deadline and its you fault you missed it then no good (email hypo)
3.       I wanted a promise and you gave me performance
a.        SEE White v. Corlies & Tift (holding no acceptance where the offeror asked for a promise and the offeree began performance)
4.       I wanted performance and you gave me a promise
a.        An unilateral K can only be accepted by complete performance
5.       BUT there is doubt in whether you invited promise or performance, you could of told me exactly when acceptance is and which way to accept. SO I can choose to perform or promise. AND, beginning performance DOESNT obligate finishing (Re. 32)
6.       No I invited you to choose between performance or promise

here was no consideration b/c plaintiff sent the check back. Plus, K said “provided property had not been sold”)
g.        OR I started performing under unilateral K so I was relying on it & Re. 45 is formed so u cant revoke
                                                   i.      BUT the offeror doesn’t have to pay until completion so he can tell them to stop & pay damages
b.       Firm offer under UCC 2.205 so I didn’t need to give consideration for you to hold it open
                                                  ii.      Signed writing by merchant to buy or sell goods that gives assurance (no consideration needed) it will be held open is not revocable, for lack of consideration, during the time stated or if not stated than a reasonable time, but it cant cannot exceed 3 months. if such form is supplied by offeree, than assurance must be signed separately by the offeror.
1.       Once this is rejected though, it is gone.
(But whats a merchant? (1) “Merchant” means a person who deals in goodsof the kind or otherwise by his occupation holds himself out as having knowledge or skill peculiar to the practices or goods involved in the transaction or to whom such knowledge or skill may be attributed by his employment of an agent or broker or other intermediary who by his occupation holds himself out as having such knowledge or skill) I began performance under a unilateral K, §45
                                                iii.      SEE Ragosta (holding getting financing to purchase land was mere preparation and offeree started mere preparations even before the offer was made)
Do you like your Ks bilateral or unilateral
Is starting performance acceptance of offer?
Can the offeror revoke once performance began?
Can the offeree quit once performance is started?
If Performance Required for Acceptance
Option K
If Performance is an option for Acceptance
NO- starting is acceptance
If Performance is ambiguous for acceptance
NO-offeror assumes risk of ambiguity
There was an offer and acceptance, but no consideration so NO contract.
Re. 71 Requirement of Exchange; Types
                                                               i.      To constitute consideration, a performance or a return promise must be bargained for. 
                                                              ii.      It is bargained for if it’s sought by the promisor in exchange for his promise and is given by the promisee in exchange for that promise. 
                                                            iii.      May be:
1.       an act other than a promise, or
2.       a forbearance, or
3.       the creation, modification, or destruction of a legal relation. 
                                                            iv.      The performance or return promise may be given to the promisor or to some other person.  It may be given by the promise or by some other person.