Contracts_ Sokolow_Fall_2014

Contracts_ Sokolow_Fall_2014 - Is a SOG the Predominating...

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Is a SOG the “Predominating Factor”? UCC“Goods identifiable at time of identification to the K” 1.Was there a Contract? a. Offer ? i. CL – whereby one party confers power to create legal K. ii. Two Prong Test: 1. Subj.: Intent to be bound? (almost always met; sometimes obj. test overtakes – Lucy) 2.Obj.: reas. Person believe offer? iii. Must be clear, definite, explicit (no equivocality) 1. Look for unequivocal positive statement iv.Advertisements/Pricequotesgenerally not offers (quantity demand issue), unless clear, def, exp., leave nothing open to negotiate.v.What did offer invite as acceptance? 1.Promise? Bilateral K 2.Performance only? Unilateral K a. Rare, binds only O’or, O’ee can back out until performance is complete. Hamer b. Mistake in Offer? (R152 – 154) Kastorff i. Unilateral mistake R153 (use if discovered after A): 1.Material to K? Make K unconscionable? Other party K/HRTK? Prompt notice? Restore status quo? ii.Mutual mistake (R152): relieves injured party if material AND not his risk; any other relief from mistake? c. Was the offer open ? i. Lapse ? 1. Reasonable time a. market fluctuations, shortens time 2. Face-to-face O, gen. lapses at end of conversation ii. Death (only Revocable Os) 1. 2R§48 – No K formed 2. Death after A excuse from K obligations iii. Rejection 1. 2R§40 – Effective on receipt 2. Option K - O’ee can rej. then A, if O’or no rely on rej. 3. Mirror Image Rule (CL): If o’ee changes terms, it’s a rejection / counter-offer. ( UCC rejects, use 2-207.) iv. O’or Revokes (Eff. upon receipt; gen. allowed anytime pre-A) 1. Exceptions/Option Ks: (O is irrevocable if…) a. Consideration -supported promise (R25) (usually payment) b. Signed Writing (R87(1)): Option K if (1) Is in writing and is signed by the o’or (2) recites a purported cons. for the O (low threshold), and (3) fair exchanges in reas. time. c. UCC 2-205 “Firm Offer” –O’or is a Merch. (broad), AND signed writing (broad), AND reas. time not to exceed 3 months (unless consid. given for longer). (no cons. needed to make irrev.) d. Reliance ? (Gen. not recognized if pre-K) i. 2R§87(2) – Should O’or have reas. expected O to induce action/forbearance? Perf./prep might be reliance ii. Subcontractors should reas. expect gen. contractor to rely on bid ( Drennan ) d. Unilateral K : O is irrev. after o’ee begins perf. (§45) a. Prep. to perform is not performance
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