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George Mason School of Law
Contracts I
VI. Acceptance
F.H. Buckley
fbuckley@gmu.edu
Shrink-rap Contracts
What if the court had held that the seller had satisfied the 2-207(1) proviso? The “second approach”: note 24
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Last day
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Executory vs. executed contracts
Offers to the world: unilateral contracts
Offers vs. “Invitations to treat”
Offers vs. “mere puffs”
Formation as a coordination game
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Promise No Promise
Promise 10, 10 -10, 0
No Promise 0, -10 0, 0
Player 1
Player 2
Promissory Accidents
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Type I: Promisors are found to promise when they really didn’t intend to do so (false positive)
Lucy v Zehmer?
Type II: Promisors are not found to promise where they intended to do so (true negative)
Leonard v. Pepsico
A solution
Devise rules of offer and acceptance such that both parties are able to recognize whether a binding contract exists
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A solution
And then impose liability (non-liability) on the party most at fault The Objective Standard Rules about communication of offers and
acceptances
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Acceptances
What constitutes an acceptance?
When and how could an offeror revoke an offer
When an how could an offeree revoke an acceptance?
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Rights and Powers
Restatement § 35. “An offer gives to the offeree an continuing power” to accept the offer or not, as he chooses. If he accepts, both parties have the right to the other’s performance, and the duty to perform
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What constitutes an acceptance
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Whatever the offeror wants… Restatement 30(1) An offer may invite or
require acceptance to be made by an affirmative answer in words, or by performing or refraining from performing a specified act, or may empower the offeree to make a selection of terms in his acceptance.
Ever-Tite at 217
Was there a contract between the parties on June 10?
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Ever-Tite
Was there a contract between the parties on June 10? What about the signature by Ever-Tite
sales rep? Actual and apparent authority
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Ever-Tite
Was there a contract between the parties on June 10?
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Ever-Tite
Was there a contract between the parties on June 10? Who was the offeror and who was the
offeree?
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Ever-Tite
Did Ever-Tite commence performance?
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Ever-Tite
What if Green had revoked the day before?
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Ever-Tite
What if Green had revoked the day before?
§42. An offeree's power of acceptance is terminated when the offeree receives from the offeror a manifestation of an intention not to enter into the proposed contract.
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Ever-Tite
What if Green had revoked the day before?
§42. An offeree's power of acceptance is terminated when the offeree receives from the offeror a manifestation of an intention not to enter into the proposed contract.
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Ever-Tite
Did the offer fail for lapse of time?
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Ever-Tite
Did the offer fail for lapse of time? 41. LAPSE OF TIME. (1) An offeree's power of
acceptance is terminated at the time specified in the offer, or, if no time is specified, at the end of a reasonable time.
(2) What is a reasonable time is a question of fact, depending on all the circumstances existing when the offer and attempted acceptance are made.
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Ever-Tite
Where did the damages of $311 come from?
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Restatement § 32
In case of doubt an offer is interpreted as inviting the offeree to accept either by promising to perform what the offer requests or by rendering the performance, as the offeree chooses.
Why the bias?
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The Offeror as the Master of the Form of Acceptance
Ciaramella at 220
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Ciaramella at 218
Who made the offer?
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Ciaramella at 218
Did Eisenberg accept?
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Ciaramella at 218
Did Eisenberg accept? “We have a deal”: What’s the argument
for treating this as “cheap talk’?
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Ciaramella at 218
Did Eisenberg accept? This … Agreement shall not be effective
… until it is signed…”
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Ciaramella at 218
Did Eisenberg accept? This … Agreement shall not be effective
… until it is signed…” Omitted terms?
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Ciaramella at 218
Did Eisenberg accept? This … Agreement shall not be effective
… until it is signed…” Omitted terms? Paragraph 13: What’s a merger clause?
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Preliminary Agreements
Can you reconcile Ciaramella with Adjustrite (228)? What are the possibilities under the
Leval test?
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Preliminary Agreements
What are the possibilities No agreement Fully enforceable Good faith norms
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Preliminary Agreements
What are the possibilities No agreement Fully enforceable Good faith norms
Can the parties bargain around this?
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Preliminary Agreements
Can you reconcile Ciaramella with Adjustrite (227)? Was Ciaramella’s signature a mere
formality? Were there any Leval good faith duties in
Ciaramella?
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George Mason School of Law
Contracts I
VI. Acceptance II
For 2012 Contracts I students only. Not to be shared.
F.H. Buckley
fbuckley@gmu.edu
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