Jed? (Don’t use reliance, promissory estoppel or Section 90 of the Restatement of Contracts) There is no manifestation of mutual assent to an exchange if the parties attach materially different meanings to their manifestationsand (a) neither party knows or has reason to know the meaning attached by the other; or (b) each party knows or each party has reasonto know the meaning attached by the other. The manifestations of the parties are operative in accordance with the meaning attached tothem by one of the parties if (a) that party does not know of any different meaning attached by the other, and the other knows themeaning attached by the first party; or (b) that party has no reason to know of any different meaning attached by the other, and theother has reason to know the meaning attached by the first party.Jed had no reason to know that M did not intend a contract. Some might argue that the fact that the check was in a different amountthan what was discussed would have put him on notice that M was thinking about something else. However, all the check did wasindicate that M may have wanted a different bargain, it didn’t really put Jed on notice that M did not want to enter into any transaction.However, M probably also had no reason to know what Jed was thinking – unless M is charged with knowing what his clerk had done.Jed would argue that from his point of view, by sending a check with a different amount, M had made him an offer. An offer is themanifestation of willingness to enter into a bargain, so made as to justify another person in understanding that his assent to thatbargain is invited and will conclude it. In determining whether and offer was made a court looks at several factors. Some of theseappear to be in Jed’s favor: what can be more indicative of a present intention than a check in payment; there was a priorcommunication about the transaction that could put the check in context; the details of what was included could be incorporated fromthe prior discussion and as far as Jed knew, he was the only one receiving the check from M.M would argue that Jed did not accept his alleged offer in the manner invited prior to termination of the offer. However, Jed wouldargue that the mode of acceptance was ambiguous. This allowed him to accept in any manner reason under the circumstances. Heaccepted by depositing the check and beginning to make and deliver the trailers. However, M would argue that Jed had not givennotice of acceptance. However, Jed would argue that because performance was an invited mode of acceptance, he only had to givenotice if he was aware that M would not find out about the performance in a reasonable time. M would argue that Jed had waited until 1 and a half months before delivering the trailer and that therefore his offer had lapsed priorto any acceptance by Jed. The success of this argument might depend on when it was that M got notice that Jed had deposited thecheck. M would argue that his alleged offer was a mistaken offer. Where a mistake of one party at the time a contract was made as to a basic
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- Fall '19