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Emanuel Law Outl ines

Contracts

Chapter 1

INTRODUCTION

I. MEANING OF "CONTRACT"

A. Definition: A "contract" is an agreement that the law will enforce.

1. Written v. oral contracts: Although the word "contract" often refers to a written document,a writing is not always necessary to create a contract. An agreement may be binding on bothparties even though it is oral. Some contracts, however, must be in writing under the Statuteof Frauds.

II. SOURCES OF CONTRACT LAW

A. The UCC: Contract law is essentially common law, i. e. judge-made, not statutory. However, inevery state but Louisiana, sales of goods are governed by a statute, Article 2 of the UniformCommercial Code.

1. State enactments: A national drafting body, the National Conference of Commissioners ofUniform State Laws (NCCUSL) proposes revisions to various UCC Articles from time to time.Each state legislature then makes its own decision about whether and when to adopt theproposed revision.a. 2003 Revision: The most recent NCCUSL revision of Article 2 is the 2003 Revision, whichmade some significant changes, especially in the area of electronic commerce. However, nostate has yet adopted this revision, and it does not look as though that revision will beadopted anywhere in the next few years.b. Our text: Therefore, when this Capsule (or this book) refers to an Article 2 provision,nearly always (and unless otherwise specifically noted) the reference is to the pre-2003version of Article, which has remained essentially unchanged since its original promulgationin 1957.

2. Common-law: If the UCC is silent on a particular question, the common law of the statewill control. See UCC § 1-103.

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Chapter 2

OFFER AND ACCEPTANCE

I. INTENT TO CONTRACT

A. Ob’jective theory of contracts: Contract law follows the objective theory of contracts. That is, aparty s intent is deemed t’o be what a reasonable person in the position of the other party wouldthink that the first party s objective manifestation of intent meant. For instance, in decidingwhether ’A intended to make an offer to B, the issue is whether A’ s conduct reasonably indicated toone in B s position that A was making an offer.

Example: A says to B, "I’ ll sell you my house for $1,000. " If one in B’ s position would reasonablyhave believed that A was serious, A will be held to have made an enforceable offer, even ifsubjectively A was only joking.

B. Legal enforceability: The parties’ intention regarding whether a contract is to be legally"enforceabl"e will normally be effective. Thus if both parties intend and desire that theiragreement not be legally enforceable, it will not be. Conversely, if both desire that it belegally enforceable, it will be even if the parties mistakenly believe that it is not.

Example: Both parties would like to be bound by their oral understanding, but mistakenly believethat an oral contract cannot be enforceable. This arrangement will be enforceable, assuming that itdoes not fall within the Statute of Frauds.

1. Presumptions: Where the evidence is ambiguous a"bout whet"her the parties intended to bebound, the court will follow these rules: (1) In a business context, the court will presumethat the parties intended their agreement to be legally enforceable; (2) but in a social ordomestic situation, the presumption will be that legal relations were not intended.

Example: Husband promises to pay a monthly allowance to Wife, with whom he is living amicably.

In the absence of evidence otherwise, this agreement will be presumed not to be intended aslegally binding, since it arises in a domestic situation.

C. Intent to put in writing later: If two parties agree (either orally or in a brief writing) on allpoints, but decide that they will subsequently put their entire agreement into a more formal writt’endocument later, the preliminary agreement may or may not be binding. In general, the partiesintention controls. (Example: If the parties intend to be bound right away based on their oralagreement, they will be bound even though they expressly provide for a later formal writtend o c ume nt. )

1. Where no intent manifested: Where the evidence of intent is ambiguous, the court willgenerally treat a contract as existing as soon as the mutual assent is reached, even if noformal document is ever drawn up later. But for very large deals (e.g. , billion dollaracquisitions), the court will probably find no intent to be bound until the formal documentis signed.

I I. OFFER AND ACCEPTANCE GENERALLY

A. Definitions:

1. "Offer" defined: An offer is "the manifestation of willingness to enter into a bargain,"which justifies another person in understanding that his assent can conclude the bargain. Inother words, an offer is something that creates a power of acceptance.

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2. "Acceptance" defined: An acceptance of an offer is "a manifestation of" assent to the termsthereof made by the offeree in a manner invited or required by the offer.

Example: A says to B, "I’ ll sell you my house for $100, "000, if you give me a check right" nowfor $10,000 and promise to pay the rest within 30 days. This is an" offer. If B says, Hereis my $10,000 check, and I’ ll have the balance to you next week, this is an acceptance.After the acceptance occurs, the parties have an enforceable contract (assuming that there isno requirement of a writing, as there probably would be in this situation) .

B. Unilateral vs. bilateral contracts: An offer may propose either a bilateral or a unilateralcontract.

1. Bilateral contract: A" bilateral contract is a contract in which both sides make promises.(Example: A says to B, I promise to pay you $1,"000 on April 15 if you promise now that youwill walk across the Brooklyn Bridge on April 1. ’This is an offer for a bilateral contract,since A is proposing to exchange his promise for B s promise. )

2. Unil’ateral contract: A unilat’eral contract is one which involves an exchange of theofferor s promise for the offeree s act. That is, in a unilateral contract the offeree doesnot make a promise, but instead simply acts.

Example: A says to B", "If you walk across the Brooklyn Bridge, I pro’mise to pay you $1,000 assoon as you finish. A has proposed to exchange his promise for B s act of walking acrossthe bridge. Therefore, A has proposed a unilateral contract.

III. VALIDITY OF PARTICULAR KINDS OF OFFERS

A. Offer made in jest: An offer" which th"e offeree knows or should know is made in jest is not avalid offer. Thus even if it is accepted, no contract is created.

B. Preliminary negotiations: If a party who desires to contract solicits bids, this solicitation isnot an offer, and cannot be accepted. Instead, it merely serves as a basis for preliminarynegotiations.

Example: A says, "I would like to sell my house for at le"ast $10"0,000. " This "is al’most certainly asolicitat"ion of bids, rather than an offer, so B cannot accept by saying, Here s my check for$100,000.

C. Advertisements: Most advertisements appearing in newspapers, store windows, etc. , are not offersto sell. This is b"ecau’se they do not contai"n sufficient words of commitment to sell. (Example: Acircular stating, Men s jackets, $26 each, would not be an offer to sell jackets at that price,because it is too vague regarding quantity, duration, etc. )

1. Specific terms: But if the advertisement contains specific words of commitment, especia"llya p’romise to sell a particular number of units, then it may be an o"ffer. (Example: 100men s jackets at $26 apiece, first come first served starting Saturday, is so specific thatit probably is an offer. )

2". Words of commitment: Look for words of commitment – the"se suggest an offer. (Example:Send three box tops plus $1.95 for your free cotton T-shirt, is an offer even though it isalso an advertisement; this is be’cause the advertiser is committing himself to take certainaction in response to the consumer s action. )

D. Auctions: When an item is put up for auction, this is usually not an offer, but is r"ather asolicitation of offers (bids) from the audience. So unless the sale is expressly said to be without

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可编辑修改欢迎下载reserve, " the auctioneer may withdraw the goods from the sale even after the start of bidding. SeeUCC § 2-328(3) .

IV. THE ACCEPTANCE

A. Who may accept: An offer may be accepted only by a person in whom the offeror intended to createa power of acceptance.

Example": O says to A, ’"I offer to sell you my house for $100,000. " B overhears, and says, "Iaccept. Assuming that O s offer was reasonably viewed as being limited to A, B cannot accept eventhough the consideration he is willing to give is what O said he wanted.

B. Offeree must know of offer: An acceptance is usually valid only if the offeree knows of the offerat the time of his alleged acceptance.

1. Rewards: Thus if a reward is offered for a particular act, a person who does the actwithout knowing about the reward cannot claim it.

C. Method of acceptance: The offeror is the "master of his offer. " That is, the offeror mayprescribe the method by which the offer may be accepted (e.g. , by telegram, by letter, by mailing acheck, etc. ) .

1. Where method not specified: If the offer does not specify the mode of acceptance, theacceptance may be given in any reasonable method.

2. Acceptance of unilateral contract: An offer for a unilateral contract is accepted by fullperformance of the requested act.

Example: A says to’ B, "I’ ll pay you $1,000 if you cross the Brooklyn Bridge. " This can onlybe accepted by A s act of completely crossing the bridge. (However, the offer will berendered temporarily irrevocable once B starts to perform, as discussed below. )

3. Offer invites either promise or performance: If the offer does not make clear whetheracceptance is to occur through a promise or performance, the offeree may accept by either apromise or performance.a. Shipment of goods: For instance, if a buyer of goods places a "purchase order" thatdoes not state how acceptance is to occur, the seller may accept by either promisingto ship the goods, or by in fact shipping the goods. UCC § 2-206(1) (b) .b. Accommodation shipment: If the seller is "accommodating" the buyer by shipping whatthe seller"knows and says are non"-conforming goods, this does not act as an acceptance.

In this accommodation shipment situation, the seller is making a counter-offer,which the buyer can then either accept or reject. If the buyer accepts, there is acontract for the quantity and type of goods actually sent by the seller, not for thoseoriginally ordered by the buyer. If the buyer rejects, he can send back the goods. Inany event, seller will not be found to be in breach. UCC § 2-206(1) (b) .

4. Notice of acceptance of unilateral contract: Where an offer looks to a unilateral contract,most courts now hold that the offeree must give notice of his acceptance after he has donethe requested act. If he does not, the contract that was formed by the act is discharged.Example: A says to B, "I’ ll pay you $1,000 if you cross the Brooklyn Bridge by April 1. " Bcrosses the bridge on time. As soon as B crosses, a contract is form’ed. But if B does notnotify A within a reasonable time thereafter that he has done so, A s obligation will bedischarged.

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5. Acceptance by silence: Generally, an offer cannot be accepted by silence. But there are afew exceptions:a. Reason to understand: Silence can constitute acceptance if the offeror has giventhe offeree reason to understand that silence will constitute acceptance, and theofferee subjectively intends to be bound.b. Benefit of services: An offeree who silently receives the benefit of services (butnot goods) will be held to have accepted a contract for them if he: (1) had areasonable opportunity to reject them; and (2) knew or should have known that theprovider of the services expected to be compensated.c. Prio’r conduct: The prior course of dealing may make it reasonable for theofferee s silence to be construed as consent. (Example: Each time in the pa"st, Sellerresponds to pu"rchase orders from Buyer either by shipping, or by saying, We don’ thave the item. If Seller now remains silent in the face of an order by Buyer for aparticular item, Seller s silence will constitute an acceptance of the order. )d. Acceptanc"e by dom"inion: Where the offeree receives goods, and keeps them, thisexercise of dominion is likely to be held to be an acceptance.

6. ‚Implied-in-fact‛ contracts: Situations in which the parties do not expressly exchangean offer and acceptance, but in which they indicat‚e by their conduct their understanding thata contract is being formed, are sometimes called implied-in-fact‛ contracts.a. Benefit of services: For instance, an offeree who silently receives the benefit ofservices will be held to have accepted a contract for them if he: (1) had a reasonableopportunity to reject them; and (2) knew or should have known that the provider of theservices expected to be compensated.b. Distinction: Be sure to distinguish the true implied-in-fact contract situation (inwhich each party, by his conduct, knowingly leads the other to believe that they havean agreement) from a situation in which at least one party fails to take any actionthat would justify the other in believing that a contract is intended.i. Intra-familial transactions: For example, when one party performs small-scale services for another and the two are close relatives, if neither partyexpressly brings home to the other that payment is expected, the court islikely to conclude that the services were a gift rather than a commercialtransaction.

V. ACCEPTANCE VARYING FROM OFFER

A. Common law "mirror image" rule: Under the common law, the offeree’ s response operates as anacceptance only if it is the precise mirror image of the offer. If the response conflicts at allwith the terms of the offer, or adds new terms, the purported acceptance is in fact a rejection andcounter offer, not an acceptance.

Example: A wr"ites ’to B, "I’ ll ’sell you my house for $100",000, closing to t’ake place April 1." Bwrites back, That s fine; let s close April 2, however. At common law, B s response is not anacceptance because it diverges slightly from the offer, so there is no contract.

B. UCC view: The UCC rejects the "mirror image"rule, and will often lead to a contract being formedeven though the acceptance diverges from the offer. Wherever possible, the UCC tries to find acontract, so as to keep the parties from weaseling out (as they often try to do when the market

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可编辑修改" 欢迎下载changes) . This entire "battle of the forms is dealt with in UCC § 2-207, probably the mostimportant UCC provision for the Contracts student.

1. General": At" the most general l"evel, § 2-207(1) provides that any "expression ofacceptanc"e or written confirmation wil"l act as an acceptance even though it states termsthat are additional to or different from those contained in the offer.

E"xample: Buyer s"ends a "purchase order" containing a warranty. Seller responds with anacknowledgement, containing a disclaimer of warranty. There will be a contract under theUCC, even though there would not have been one at common law.

2. Acceptance expressly condition"al on assent to changes: An "expression of acceptance" doesnot form a cont"act if it is expressly made conditi"onal on a"ssent to. . .additional ordifferent terms. § 2-207(1) . So if the purported acceptance " contains additional ordifferent terms from the offer, and also states something like, This acceptance of youroffer is effecti"ve only if you agree to all of the terms listed on the reverse side of thisacceptance form, there is no contract formed by the exchange of documents.a. Lim’ ited: Courts are reluctant to find that this section applies. Only if the secondparty s form makes it clear that that party is unwilling’ to proceed with thetransaction unless the first party agrees to the second party s changes, will theclause be applied so as to prevent a contract from forming.

3. "Additional" term in acceptance: Where the offeree’ s response contains an "additional"term (i.e. , a clause taking a certain position on an issue with which the offer does not dealat all), the consequences depend on whether both parties are merchants.a. At least one party not merchant: If at lea’st one party is not a merchant, theadditional term does not prevent the offeree s response from giving rise to acontract, but the additional term becomes part of the contract only if the offerorexplicitly assents to it.

Example: Consumer sends a purchase order to Seller, which does not mention howdisputes are to be resolved. Seller sends an acknowledgement form back to Consumer,which c"orrectly recites the basic terms o"f the deal (price, quantity, etc. ) , and thensays, All disputes are to be arbitrated.

Even though the acknowledgement (the "acceptance") differed from the purchaseorder by introducing the arbitration term, the acknowledgement formed a contract.However, since at least one party (Consumer) was not a merchant, this additional termwill only become part of the contract if Consumer explicitly assents to that term(e.g. , by initialing the arbitration clause on the acknowledgement form) .b. Both merchants: But if both parties to the transaction are "merchants, " then theadditional term automatically becomes part of the contract, as a general rule.(Example: On facts of prior example, if Buyer was a merchant, the arbitration clausewould"become part of the contract. ) However, the"re are two important exceptions tothis additional term becomes part of the contract rule:i. Mate"riality: The addit"ion will not become part of the contract if it is onewhich materially alters the contract. For instance, a disclaimer of warrantywill always be found to materially alter the contract, so if the sellerincludes such a disclaimer in his acknowledgement form after receiving thebuyer’ s purchase order, the disclaimer will not become part of the contract.

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可编辑修改欢迎下载ii. Objection: If the offeror objects to having the additional term become partof the contract, it will not so become.

4. Acceptance silent: If an issue is handled in the first document (the offer), but not inthe second (the acceptance) , the acceptance will be treated as covering all terms of theoffer, not just those on which the writings agree.

Example: Buyer’ s purchase order says that disputes will ’ be arbitrated; Seller’ sacknowledgement is silent on the issue of arbitration. The Seller s form will be found to bean acceptance, and disputes will be arbitrated.

5. Conflicting terms in documents: If an issue is covered one way in "the offeri"ng documentand another (conflicting) way"in the acceptance, mo"st courts apply the knock out rule. Thatis, the conflicting clauses k"nock each "other out of the contract, so that neither entersthe contract. Instead, a UCC gap-filler provision is used if one is relevant; otherwise,the common law controls.

Example: Buye’r’ s purchase order states that disputes will be litigated in New York statecourt. Seller s "acknowledg"ement form states that disput"es will be arbit"rated."Most court"swould apply the knock out rule, whereby neither the New York courts nor arbitrationclauses would take effect. Instead, the common law – allowing an ordinary civil suit to bebrought in any state that has jurisdiction – would apply.

6. Response diverges too much to be acceptance: If a purported acceptance diverges greatlyfrom the terms of the offer, it will not serve as an acceptance at all, so no contract isforme d.

7. Contract by parties’ conduct: If the divergence referred to in the prior’paragraph occurs(so that the exchange of documents does not create a contract) , the parties" conduct lateron can still cause a contract to occur. Section 2-207(3) provides that conduct by bothparties which recognizes the existence of a contract is sufficient to establish a" contractfor sale although the writings of the parties do not otherwise establish a contract.Example: Buyer’ s purchase order is for 100 widgets at $5 each. Seller’ s acknowledgementform is for 200 widgets at $7 each. Buyer does not say anything in response to theacknowledgement form. Seller ships the 200 widgets, and Buyer k’eeps them. Even though theexchange of documents did not create a contract, the parties conduct gave rise to acontract by performance.a. Terms: Where a contract by conduct is formed, the terms "consist of those terms inwhich the writings of the parties agree, together" with any supplementary termsincorporated under any"other provisions of this Act. § 2-207(3") . For instance, thepri’ce term wo"uld be a re"asonable price at the time for delivery, as imposed by § 2-

305 s price gap filler.

8. Confirmation of oral contract: If the parties initially reach an "oral agreement", adocument later sent by one of them memorializing the agreement is called a confirmation.a. Additional terms in confirmation: If the confirmation contains a term that isadditional to the oral agreement, that additional term becomes part of the contractunless either: (1) the additional term materially alters the oral agreement; or (2)the party receiving the confirmation objects to the additional terms.b". "Differe"nt" term in confirmation: If a clause contained in the confirmation isdifferent from a term on the same issue reached in the oral agreement, the newclause probably does not become part of the agreement.

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9. ‚Terms of follow‛ contra‚cts (a/k/a rol‛ling co‚ntracts)‛: Goods are sometimes sold underwhat is sometimes called a terms to follow or rolling contract. In such a contract,the buyer, usually a consumer, orders and pays for the goods without seeing most of thecontract terms. The detailed terms are then contained on or in the box containing the goods.The buyer is told that if she does not agree with the detailed terms, she has a certain timewithin which to return the goods for a full credit. Courts are split on how to analyze suchrolling contracts.a. The ‚not formed until receipt‛ approach: Some courts say that § 2-207 doesn’ tapply, and that no contract is formed until the buyer has received the goods and haskept them for beyond the prescribed return period. This approach tends to yield acontract that includes all of the seller’ s terms, on the theory that the action ofthe buyer in keeping the goods rather than returning them should ’be interpreted as anacceptance by performance, and acceptance that includes the buyer s assent to all ofthe seller’ s proposed terms.

Example: P orders a personal computer from D (the manufacturer) by phone> No forms aree‚xchanged at the‛time. The box arrives, containing the computer and a document ofStandard Terms, which include an arbitration clause. The Standard Terms say that Pcan return the computer for a full refund anytime within 30 days of receipt;thereafter, the computer is no long’er returnable, and P will be deemed to haveaccepted the Standard Terms. P doesn t return, then sues, and D contends that thearbitration clause became part of the contract.

Som’e courts w‚ould hold for D, on‛the theory that (1) §2-207 doesn’ t apply becauseit s not a battle of the forms (only D has used a form) ; and (2) no contract wasformed until P kept the computer for 30 days, at which point P was deemed to haveaccepted the Standard Terms, including the arbitration clause. Therefore, thearbitration clause would be held to have become part of the contract. [Cf. Hill v.Gateway 2000]b. Contract formed under § 2-207 at time of order: But other courts hold that § 2-207does apply to the rolling-contract scenario, and that a contract is therefore formedat the time of the order. Under this approach, the buyer is usually considered to bethe offeror, the seller is an offeree who is proposing additional or different terms,and at least where the buyer is a consumer those terms never become par’ t of thecontract unless the buyer expressly agrees to them (which she usually doesn t) . Thisis probably the better approach.

Example: Same facts as above Example. ’The better view is that § 2-207 applies (eventhough the only form ever’ used is D s Standard Terms document, which acts as aconfirmation of the parties earlier oral deal) . P is an offeror, and D is an offereewho is proposing the arbitrat’ion clause as an additional term. Because P is a consumer,the arbitration clause doesn t become part of the contract under § 2-207(2) unless Pagrees to it, which P didn’ t do. Therefore, there is no arbitration clause in thecontract. [Cf. Klocek v. Gateway Inc. ]

VI. DURATION OF THE POWER OF ACCEPTANCE

A. General strategy: For an acceptance to be valid, it must become effective while the power ofacceptance is still in effect. So w"here there" is doubt about whether the acceptance is timely: (1)pinpoint the moment at which the acceptance became effective; and (2) ask "wheth"er the power ofacceptance was still in effect at that moment. If the answer to part (2) is yes, the acceptancewas timely.

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B. Ways of terminating power of acceptance: The offeree’ s power of acceptance may be terminated infive main ways: (1) rejection by the offeree; (2) counter-offer by the offeree; (3) lapse of time;

(4) revocation by the offeror; and (5) death or incapacity of the offeror or offeree.

1. Rejection by offeree: Normally, if the offeree rejects the offer, this will terminate herpower of acceptance.a. Exceptions: But rejection will not terminate the power of acceptance if either: (1)the offeror indicates that the offer still stands despite the rejections; or (2) theofferee states that although she is not now accepting, she wishes to consider theoffer further later.

2. Counter-offer: If the offeree makes a counter-offer, her power to accept the originaloffer is terminated just as if she had flatly rejected the offer.

Example: On July 1, A offers to sell"B’ 100 widgets at $"5 each, the offer to be left openindefinitely. On July 2, B responds, I ll buy 50 at $"4. A declines. On July 3, the ma"rketprice of widgets skyrockets. ’On July 4, B tells A, I’ ll accept your July 1 offer. Nocontract is formed, because B s power of acceptance was terminated as soon as B made hercounter-offer on July 2.a. Contrary statement: But as with a rejection, a counter-offer does not terminate thepower of acceptance if either offeror or off"er’ee indicates otherwise. (Example: Onfacts of abo’ve example, if B said on July 2, I ll buy 50 fro"m y’ou right now for $4;otherwise, I d like to keep considering your original offer, A s offer would haveremained in force. )

3. Lapse of time: The offeror, as "master’of his offer, " can set a time limit for acceptance.At the end of this time limit, the offeree s power of acceptance automatically terminates.a. End of reasonable time: If the offeror does not set a time limit for acceptance,the power of acceptance terminates at the end of a reasonable time period.i. Face-to-face conversation: If the parties are bargaining face-to-face orover the phone, the power of acceptance continues only during the conversation,unless there is evidence of a contrary intent.

4. Revocation: The offeror is free to revoke his offer at any time before it is accepted(except in the case of option contracts) .a. Effective upon receipt: A revocation by the offeror does not become effective untilit is received by the offeree.

Example: On June 15, A mails an offer to B. On July 1, A mails a revocation to B. OnJuly 3, B has a lette’r of acceptance hand delivered to A’. On July 5, A’ s revocationis received by B. B s acceptance is valid, because A s revocation did not ta’keeffect until its receipt by B, which was later than the July 3 date on which B sacceptance took effect.i. Lost revocation: If the letter or telegram revoking the offer is lostthrough misdelivery, the revocation never becomes effective.

5. Death or incapacity of offeror or offeree: If either the offeror or offeree dies or losesthe legal capacity to enter into the contract, the’ power to accept is terminated. This is soeven if the off"eree does no"t learn of the offeror s death or incapacity until after he hasdispatched the acceptance.

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