Contracts Outline Online

Contracts Outline Online - Contracts II Outline Elements of...

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Contracts II Outline Elements of a Classic Contract: offer acceptance consideration The Offer “An offer is an expression by one party of his assent to certain definite terms, provided that the other party will likewise express his assent to identically the same terms.” R.2d Sec. 24 An offer is the 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. Making an offer confers upon the offeree the “power of acceptance.” Beyond preliminary talk. What constitutes an offer? Objective test: a reasonable person in the same position would think there was an offer. Subjective test: did the person think there was an offer. Factors distinguishing an offer from preliminary negotiations: 1. Was the language used the language of offer? a. “propose,” “ask,” – not good. b. “offer” – good. 2. Was the proposal to one or a group ? a. Generally, if it’s to one person, it’s more likely an offer than if it’s out to everyone. 3. Was the proposal in response to a request for an offer ? a. What would otherwise seem vague may seem much less so. 4. How definite are the terms? a. It’s better to have enough to find a K. b. Do we know exactly what’s being sold and on what terms? 5. Where is the proposal in the process of the negotiation? a. Look at this history, context. Current view: objective test. if recipient would reasonably understand the communication in a certain way, and DOES understand it that way, there’s a K (unless fraud, etc.) An advertisement can be an offer, but not usually. (Invitations to deal). whether the facts show that some performance was promised in positive terms in return for something requested – Williston Generally not offers, qualified by consumer laws. If you don’t want to make an offer, include “this is not an offer” in the language!
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Price quotes are normally not offers – treated like advertisements. But if quotes are in response from definite request for an offer, they can be (Mason jars). Acceptance Acceptance is the voluntary act of the offeree, whereby he exercises the power conferred upon him by the offer and creates the K. after an offeror creates the power of the offer, the matter is out of his hand. Ways of accepting: must be by some kind of voluntary act (usually by any manner or medium) o The offeror can’t generally use silence or equivocal ambiguous acts as a way of forcing a K on someone. o The offeror can create conditions on the ways of acceptance, but not as much now as he could before. Typically seen in time-related issues: “You can only accept by delivering a written acceptance by…” Must be definite and unequivocal (so that it’s not seen as a counteroffer) Sometimes, starting work (acting on the offer) may be enough to prove the deal.
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This note was uploaded on 07/07/2010 for the course LAW II taught by Professor Newell during the Spring '10 term at Lewis & Clark.

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Contracts Outline Online - Contracts II Outline Elements of...

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