Procedural History : Trial court ruled no contract had been formed and awarded judgment to Norfolk. Lucier appealed. Issue : Was a contract formed? If so, was it for $175 per week or $35 per day? Holding : No contract was formed. Trial court’s judgment affirmed. Rationale : Based on prior dealings and terms of invitation to bid, Board thought Lucier’s bid (offer) was simply a different way of stating the per day rate. However, Lucier intended to insist on the weekly rate (by which he would be paid the weekly rate even if there was a holiday during the week) and thought Board 19
Ch. 11 – Acceptance • UCC Rejects “Mirror Image” Rule for sales of goods – Acceptance that adds to or differs from original offer may still be effective – Rationale: Commercial contracts for sale of goods often not fully negotiated – Buyer uses its own form for offer and seller uses its own • To prevent “Battle of the Forms,” UCC reverses common law presumption that acceptance with different terms is a rejection and counteroffer, 20
Ch. 11 – Acceptance UCC 2-207 (Anti-Battle of Forms provision) 1. Definite and timely expression of acceptance or written confirmation operates as an acceptance even though it states additional or different terms, unless acceptance is expressly made conditional on assent to the additional or different terms 2. With non-merchants, different or additional terms do not become part of the contract unless the offeror expressly agrees to them; rather they are considered proposals (but contract still exists) a. Between merchants, additional (but not different) terms become part of the contract unless: i. Original offer expressly limited acceptance to the terms of the offer ii. New terms materially alter offer; or iii. Notification of objection is given within reasonable time 3. Conduct by both parties which recognizes existence of a contract is sufficient to establish a contract for sale even though writings of the parties reflect 21
Ch. 11 – Acceptance • When Does Acceptance Take Effect? – Offers, revocations and rejections are effective when communicated (i.e., received) – Acceptance also effective when communicated (i.e., received), but is also effective when sent IF the communication medium chosen is reasonable (“mailbox rule,” “postal rule” or “reasonable medium rule”) – Medium is reasonable when 22
Ch. 11 – Acceptance • But of course, there are exceptions: – When offeror specifies that acceptance effective only when received (“master of the offer”) – When offeror specifies that a particular medium be used to communicate acceptance – When offeree mails a rejection first and then changes mind and sends an acceptance – the first one actually received by the offeror is effective • Note: Courts have held that emails are not effective when sent but only when received at recipient’s server (even if not read) 23
Ch. 11 – Acceptance Cushing v. Thomson (Sup. Ct. N.H. 1978) 24
Ch. 11 – Acceptance Facts : In March 1973, Clamshell Alliance, an
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- Spring '08
- Ch., Lucier, LACLEDE