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Unformatted text preview: rbally promises her
that he will keep the offer open for 48 hours at the stated price. The following day, Megan offers Rahim $7,000 for the vehicle. If Rahim sells the car to
Megan, will Dana have any legal recourse?
In the above example, Rahim’s promise to hold the offer open is not binding, even though
he is a merchant with regard to the car (he regularly sells automobiles), because it was
not contained in a signed writing and was not otherwise supported by consideration. If
Rahim had written down the promise to sell Dana the car within 48 hours for $6,500 and
then signed or initialed the document, he would have been bound to honor the terms of
the promise and Dana could have sued him for breach of contract. Keep in mind, however, rog80328_07_c07_134-156.indd 140 10/26/12 5:52 PM CHAPTER 7 Section 7.1 Offer and Acceptance of the Sales Contract that signed firm offers that are not made
by merchants are still not binding under
the UCC unless supported by additional
consideration. Method of Acceptance (§ 2-206) UCC § 2-207 deals with the battle of the forms!
iStockphoto/Thinkstock In general, an offer may be accepted by
any reasonable means unless the method
of acceptance is specifically limited in
the offer, or the circumstances dictate
acceptance in a specific manner. If an
offer is to buy goods, it can be accepted
by the shipment of conforming (acceptable) or nonconforming (unacceptable)
goods, or by a promise to ship the goods. Example 7.5. Talisa orders an Inspire model laptop from Delta Corp. Delta
accepts by sending her an e-mail confirmation.
Example 7.6. Talisa makes the same offer, but this time, without replying,
Delta ships the laptop.
Example 7.7. Talisa makes the same offer, and since they have run out of
the Inspire model, Delta ships the Imagine model laptop to Talisa.
All of the above constitute Delta’s acceptance of Talisa’s offer, and in all three situations
a contract is formed. But in the last example, because Delta shipped the wrong item, it is
considered by the UCC to be a simultaneous acceptance and breach of the contract, and
Talisa can hold Delta liable for shipping the wrong thing.
How can Delta avoid a breach, while trying to accommodate Talisa’s order? The UCC
states that if the seller indicates the nonconforming goods are offered merely as an accommodation, the seller is making a counter offer rather than an acceptance.
Example 7.8. Talisa makes the offer to buy the Inspire. Delta sends her an
Imagine, along with a written note that says they are sorry they are out of
the Inspire, but will sell her the newer model, the Imagine, for the same
price. Delta is making a counteroffer. If Talisa keeps the computer, she will
have accepted this offer. If she sends it back, she will have rejected it and
there will be no contract. Additional Terms in Acceptance (§ 2-207)
At common law, an acceptance that contains additional terms beyond those of the offer is
deemed to be a counteroffer that effectively revokes the original offer. The UCC changes the
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