Contracts Outline

CREATING CONTRACTS
Obj theory of assent
Cant be secret intentions…look at manner of parties
Both parties don’t have to intend for there to be a K; rather a reas man must have right to and did understand there to be a K
Lucy v Zehmer
Embry v Hargadine
R19
 
Offer
No offer if just an invitation to trade…look at
-past communications
-usages of trade
-To whom words are addressed (to several people à offeree huld know offeror cant sell to everyone unless it is made clear he could perform)
Nebraska Seed v Harsh
R26; R24 (defines offer)
 
 
No offer if: precon negot don’t amount to an intent to be bound (i.e. staing that things are “subject to”)
Empro Manufacturing v Ball-Co
R26
 
 
Promise to keep offer open is revocable if there is lack of consideration; you can revoke before acceptance, then no acceptance
Dickinson v Dodds
R36
 
 
BUT consideration not required to keep option open
-if merchant dealing in profession
-signed writing
-gives explicit assurance that offer will be held open
 
 
 
Acceptance
Default: Mailbox Rule
 
R63
 
 
Acceptance must be properly dispatched – must address it right and put postage – this is offeree’s problem if he doesn’t do this
 
R66
 
 
BUT if option K – acceptance not valud until received; Any mistakes in offer is offeror’s problem
 
 
 
 
Mirror Image Rule: If A offers B and B counteroffers…becomes new offer (R61) but if part perf..hard for A to say varied terms are a problem (R45)
 
R61 and R45
 
 
BUT…UCC is diff: if acceptance contains additional terms à still acceptance à additional terms are proposals for addition to the K; new terms become party of K UNLESS materially alters, offer expressly limits acceptance to terms of offer; notification of objection to them has already been given
 
 
 
Accept by Perf
If terms make it so that perf accepts, then unilateral à acceptance (no notification necessary)…makes it clear that offeror is capable of fulfilling its duties
Carlill v Carbolic Smoke Co
R54
 
 
Revoke offer to be accepted by perf by publication equal to publication of offer
 
R46
 
 
If bilateral K, no acceptance by perf à if you specify that acceptance by agreement; not perf à no accept by perf
White v Corlies & Tifft
 
 
Accept by Silence
Silence and retainment for unreas amt of time = acceptance; duty to speak up b/c they had a past relationship
Hobbs v Massoit Whip Co
R69
 
CONSIDERATION
Gifts
If gift à still has to be consideration
Johnson v Otterbein Univ
R24
 
 
But if gift given, there can still be consideration…consideration is either benefit to promisor or forbearance of a legal right to that party’s detriment
Hamer v Sidway
R71
 
Past/Moral Consid
Past consid doesn’t count if something done before deal was made
Moore v Elmer
 
 
 
If benefit conferred on someone you are not legally resp