Contracts
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About this ebook
Suggested uses:
o Check list in contracting situations
o To understand proportion and relevance
o Quick and constant refreshers before classes and exams
o As the last review before taking the Bar Exam
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Contracts - BarCharts, Inc.
The Agreement Process
OFFER
Offeror: Person who makes the offer and now has the power to control the offer
Offeree: Person to whom the offer is made and whom now has the power of acceptance
Offers must:
Be communicated
Indicate a desire to enter into a contract
Be directed at a person or group
Invite acceptance
Create understanding that if accepted, a contract now arises
INTENT TO CONTRACT
Expression of present intent to enter into a contract
Intent to be legally bound to the contract
Must be an objectively reasonable manifestation of intent to contract
Use a reasonable standard unless one party has specific knowledge to which they can be held
Restatement 2nd Contracts §24: 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
Actual knowledge of Offeree
Communication of offer by Offeror to Offeree
Creates power of acceptance in Offeree
INDEFINITENESS OF THE CONTRACT
Even though parties have reached an agreement so that there is mutual assent, the agreement may be void if the content of the agreement is unduly uncertain
Offer must be so definite as to its material terms, or require such definite terms in the acceptance, that the promises and the performances to be rendered are reasonably certain
Material terms may include subject matter, price, payment terms, quantity, duration, and work to be done
Under UCC, the only term required to be definite is quantity
OFFERS DISTINGUISHED FROM NON-OFFERS
Opinions
Expressions of opinion and words of reassurance are not promises and are therefore not offers
Reasonable person test used to distinguish opinions from offers, using circumstances and language expressed
Advertising
Generally, an invitation to receive offers from the public where the advertiser has an option to accept, negotiate, or reject the public’s offer to buy
Obvious jokes in communication are not offers
However, if language is specific enough as to price and quantity, then it could be an offer
Inquiries and quotes
Generally considered as invitations for an offer
To determine if it is an inquiry or offer, examine whether there is language of commitment and whether the terms, especially quantity, are sufficiently definite
Auctions
Default: The item up for auction is treated as an invitation for offers to buy, which may be rejected by the seller. Thus, bidders at an auction are treated as offerors
Exception: If the auction is without reserve,
meaning the seller is making an offer to sell for any price, which can then be accepted by the buyer when presented for auction. Thus, bidders here