Travis Autumns Good Contracts Outline

CONSIDER THE SIGNIFICANCE OF EVERY WORD!
Beware of summer houses in winter
CONTRACTS
Fall 2012 Professor Bockrath
WHAT IS THE TEST/STANDARD???
STANDARD: More likely/Less Likely
I.
INTENT TO CONTRACT
Contract:
1. Offer
2. Acceptance of offer
3. Consideration (contains some kind of quid pro quo)
4. Competent parties
5. Legal purpose (if purpose of contract is illegal, one is not legally bound. Examples:
gambling, hit man)
6. Form requirements
A. Objective Theory:
a. Assent is determined from outward actions and wordsONLY
b. A partys intention will be held to be what a reasonable person in the position of the
other party would conclude the manifestation to mean
i. Includes special knowledge that party holds
ii. Includes knowledge a reasonable person would have
c. MEETING OF THE MINDS NOT NECESSARY
B. Remedy for Breach of Contract:
a. Must have some damage or injury to have a breach + collect damages
i. There is no real breach if you do something right regardless of compliance
w/ contract
ii. Fault or carelessness is irrelevant in law of contracts
b. Specific Performance: requires existing contract
i. Requiring performance of a contractual duty, rather than assessing money
damages for breach of contract
ii. This is the remedy when item contracted for sale is unique and it is the seller
who does not deliver
c. $$ Damages
i. If the buyer does not deliver, the remedy is money damages [b/c money is
not unique, it is fungible]
C. Lucy v. Zehmer
a. ?? Would a reasonable person in the position of the offeree be warranted
in believing the offeror intended to be bound by the offer??
i. Was Lucy warranted in believing that Zehmer was serious about selling his
land?
ii. In order to discuss Lucy principle a contract must exist. Lucy principle cannot
create a contract, can only negate a contract. Someon is trying to wiggle out
of deal.
b. Consider the factors that would make it More/Less likely that offeree was
warranted in believing this is an offer
CONSIDER THE SIGNIFICANCE OF EVERY WORD! Beware of summer houses in winter
i. Price relative to the value of item: the larger the disparity between the price
and the value; the less intent there is to contract
ii. Drinking- less likely
iii. Restaurant setting- less likely
iv. Contract written twice- more likely
v. Discussed for 40 minutes- more likely
vi. If deal made in anger, suggests less likely
vii. Price value disparity
viii. Motivation/provocation relative to action
ix. Precision of the terms used by parties
x. Etc.
c. Court states not only did Lucy actually believe, but the evidence shows he was
warranted in believing, that the contract represented a serious business transaction
and a good faith sale and purchase of the farm.
d. Must look to the outward expression of a person as manifesting his intention rather
than to his secret and unexpressed intention; mental assent of parties is not
requisite for the formation of a contract
e. Lucy principle works only in the negative: If you see a house for sale sign for
$250,000 in yard, reasonable person might believe an offer has been made. But, it
is not an offer and seller is not bound to anything. If sign said, We promise to see
you this hosue it is still not an offer and Lucy principle is irrelevant.
D. Presumptions:
a. Conclusive: cannot be legally overcome
b. Rebuttable: can be overcome w/ evidence, testimony, etc.; if presumption can be
overcome, then the contract doesnt stick
c. Business transaction are presumed to have the intent to be bound but are
rebuttable
d. The parol evidence rule is a substantive common law rule that prevents a party to a
written contract from presenting extrinsic evidence that contradicts or adds to the
written terms of the contract that appears to be whole.
e. Intent to Contract Presumptions
f. Texaco v. Pennzoil:
Memorialization the contract came into existence, and the money/signing is a
memorialization of the contract that already transpired.
If the parties intend to contract orally, the mere intention to commit the
agreement to writing does not prevent contract formation before execution of
that writing, and even failure to reduce their promises to writing is immaterial to
whether they are bound
In deciding whether a binding contract exists, look at intent rather than form
To help determine whether the parties intended to be bound only by a formal,
signed writing:
i. Expressed Reservation: a party expressly reserved the right to be bound
only when a written agreement is signed (this is first in the list because if you
have this you dont need the other criteria)
ii. Partial Performance (by one party that the party disclaiming the contract
accepted, Rath says by either party. But, partial performance is not
determinitive)
iii. All of the major terms of the contract had been agreed upon
iv. Complexity of the transaction was substantial enough for a formal executed
writing to normally be expected
g. Amity:
1. Balfour v. Balfour: When husbands and wives are living in amity can
presume that they do not intend legal consequences to flow from
agreements made; a rebuttable presumption that they do not intend
legal consequences of agreements they make
2. The lack of intention for legal consequences is presumed in a
marriage, not amity
3. How can you rebut the presumption? Show they have some weird
agreement
4. If married couple is not living in amity, they may be contemplating
legal consequences
Offers of Hospitality: Generally not made w/ contemplation of legal
consequences; not binding
Offers of support: people may be contemplating legal consequences
Remember! In order for intent to be present every other element of an offer

must be present!
II. THE OFFER
1. Promise
o Some expression by offeror that he will do or not do what he says
o Look at language
2. Contents
a. price
b. quantity term
c. quality term (qualitites that object has/description of object)
3. Terms (not required but often present)
4. Duration (length of time the contract will exist; not required but often present)
A. General
a. First consider if there is really an offer!
b. The fact that language used in an offer could be more emphatic/specific/etc. does
not mean that it is NOT emphatic/specific/etc. ENOUGH!
c. Making an offer = transfer of power
i. Merchant does not usually make offer to sell
d. Whether you think I made you an offer or if youre warranted in believing I made an
offer is IRRELEVANT; you must have the necessary offer elements
e. Conditional acceptance of an offer = counteroffer
f. Promisory language: I will is standard
g. A person can not turn a non-offer into an offer.
h. If there is no offer, there is no promise no promise, no intent
Offer:
Promise (language of commitment)
Contents: Price, Quality (Qualities that the product has), Quantity (how much or how
many)
(Dont always have to be present)
Terms of agreement
Duration
B. What is NECESSARY for contract of sale? [Other things may or May not be there, but these
are the essentials]
a. Promissory Language
i. STANDARD to measure against = I will
1. Presumption is against language being promissory
ii. Willingness to sell is not a promise to sell
1. For Sale does not equal I Will Sell
2. For Sale sign is not a promise
iii. Promissory act can substitute for promissory language
1. Not the bastard stepchild of promissory language
2. By putting 6 pack of beer onto cashier counter with $10 is an act that
says, I will buy.
a. If only put $5 on counter and sale sign says $5.99 customer is
still making offer
b. If sign had promisory language and was considered offer and
only put $5 on counter when the sign said $5.99- still an offer,
this is a counter offer
iv. Can be negative
1. I promise not to publish dishonest material
v. Language of Prophecy not sufficient; not promissory
1. The balance will be paid by whom? Subject missing
2. Usually refers to contracts pending or a prior agreement
3. Used when talking about someone elses actions; one rarely
prophesizes about what they will do themselves
vi. Consider promissory language as imbedded into a context
1. Must relate to a sale [Lonergan v. Scolnick I will sacrifice does not
refer to the sale]
C. Offers Distinguished from Expressions of Opinion and Advertisements
a. Hawkins v. McGee
i. The doctor stated I will guarantee to make the hand a hundred percent
perfect or a hundred percent good hand
ii. The doctor also solicited plaintiff repeatedly for an oppurtunity to perform the
operation
iii. Thus, there was a warranty on the outcome of the operation, so he

breached his contract when it was not perfect
iv. The remedy is the value of a perfectly good hand to the defendant minus the
value of the hand in its current condition
b. Sullivan v. OConnor
i. Is there a breach of contract when a plaintiff claims the defendant (doctor)
promised a specific result
ii. Allow breach of contract for a medical suit, but take a middle of the road
approach, insist on clear proof
iii. The complexity or difficulty of an operation will bear on the probability that a
given result was promised
c. Craft v. Elder
i. Went to the store to buy the item with $26, this was the offer. There was no
offer in the ad in the paper.
d. Leonard v. Pepsico
i. There was no offer, there was simply an offer to negotiate.
ii. The Order form is the medium for the offer here.
iii. Once the person fills out the order form and furnishes the money, THAT is the
offer
iv. There would be no enforceable contract until Pepsi accepted the Order Form
and cashed the check
v. The advertisement was such that no reasonable person could expect that
Pepsi would sell a 7 million dollar harrier jet for $700,000
D. Content
i. Price Term
1. Options for writing in price term:
a. Leave it undefined [does not mean its not agreed upon, may be
ascertainable; might also mean contract will fail for want of price
term]
b. Fill in explicit/ascertainable price [bound to]
c. Agreement to agree: To be agreed upon at a later date not
promissory and not enforceable
2. Doesnt have to be specific just ascertainable
a. $14.60
b. For appraised value, the Blue Book value
ii. Quantity
1. The number the seller has available to sell; the number of items the
buyer wants to buy
2. Could be expressed with words of limitation

a. First come first served
b. For a limited time only
c. The first 100 customers
3. Protects seller from inadvertent unlimited liability
exposure
4. Can be defined by industry terms a car load; 4 bushels; etc.
5. Carbolic Smoke Ball company offers to pay $100 to any person
(this is an unlimited quantity but it is not inadvertent)
iii. Quality
1. Description of the item for sale; shape, color, sizenot a measure of
excellence
2. Barter transaction has quality terms going both ways; sale doesnt b/c
$ is fungible
3. Cannot determine quality from the price of materials
4. This can be tricky b/c the more you try to define the object, the more
ambiguity results due to not everyone agreeing on what the meanings
of adjectives are. [Gilroy Theatre case]. Dog v big dog. Everyone
agrees on dog, but what is big. So, big dog is more ambiguous.
5. Things to consider:
a. The reasons for the contract in order to determine what the
quality term is trying to accomplish; define words by virtue of
context of use and purpose [Gilroy Theatre they wanted to
improve the neighborhood so wanted first class theatre not a
junky dollar theatre];
b. Whether the description is sufficient enough for the parties
involved [terms of the industry, intent, etc.]
c. How important the details in the specific situation are to the
parties involved
i. HYPO: does a law student who buys a car for $50 sight
unseen really care what color the car is? Probably not; if
color were that important than he wouldnt buy sightunseen. More interested in a low price
ii. HYPO: what is the most important quality of paint? In a
Circle K it might be the durability of the paint; in a home it
might be the color of the paint
6. Quality is the most personal element; cant look it up in a dictionary
(i.e. first-class theatre); consider what the parties mean and why
7. May not come in the form of language but as a sample of a product
[millet seed p. 41 question 29]
8. Consider how specific the quality term needs to be for parties involved
+ why [tailor reasoning to the FACTS]; then decide if contract is
breached or fails b/c of quality term
9. Just b/c parties agreed to specific wording does not mean that the
wording agreed upon was specific enough i.e. just saying we will
give you a pension plan is not enough explanation b/c the details of
the plan are significant
10.Also, just b/c a specific wording could be more specific does not mean
that it is not specific enough.
11.Goods move to the buyer, need quality term they can understand;
money moves to the seller, the amount of money satisfies the quality
term for seller
12.Draw inferences from the facts to determine if you can fill in a gap
about quality or to define terms that parties used [neat + tasteful p.
100 # 31 + 32]
b. HYPO Circle K Beer Pyramid
i. There is a pyramid of 6 packs of beer in the Circle K with a $4.99 sale sign on
it; you pick up a 6 pack and put it on the counter with a $10 bill and say
nothing; is this an offer?
1. Buyer: makes the offer with promissory act [tendering the money] and
content [price = $10; quantity = 1; quality = 6pack]
a. Just because you make offer to buy in excess of selling price
DOES NOT mean that you want change!
2. Seller: price = $4.99; quality = the beer in the pyramid; quantity =
how ever many six packs are in the pyramid; no promissory
language/act have they really made an offer?
E. Offers Distinguished from Preliminary Negotiations and Price Quotes

a. Lonergan v. Scolnick: Order of Communication
i. Consider subsequent transactions/communications in light of what came

beforeNOT vice versa
ii. If #1 is not an offer in itself, nothing #2 does will make #1 an offer; however,
if #1 has promissory language and price and #2 has quantity and quality,
then #2 becomes the offer
iii. Defendant responded to an INQUIRY with a FORM LETTER. Form letters are
usually sent to many people, so no intent to be bound by them.
iv. This letter was merely asnwering questions the plaintiff raised about the
property
v. The ad was a request for an offer
b. Fairmont Glass v. Cruden Martin

i. Defendant asked for the lowest price not a quote
ii. Plaintiff sent them back a quote which stated for immediate
acceptance
1. For immediate acceptance has to be looked upon in light of the
quote letter
2. Since defendant asked for lowest price and not a quote, Plaintiff
must have intended to give defenant the information they asked
for.
3. Plaintiff would sell at these prices if they were accepted
immediately
4. Thus when defendant sent the acceptance letter there was a
binding contract.
F. Offers Distinguished from Catalogs
a. Catalogs are solicitations of offers to buy; not contracts to sell

i. Catalog does not have content necessary or promissory language
b. Until catalog processes money and order form, they can reject your offer to buy
G. Offers Distinguished from Advertisements [Leonard v. Pepsico; Lonergan v. Scolnick]
a. Ads not generally offersnot b/c theyre ads but b/c they usually lack:
i. Promissory language
ii. Quantity term
H. Offers Distinguished from Negotiations + Price Quotes
a. Generally: ESTIMATE IS NOT PROMISSORY
i. Inquiries are not promissory; treated differently
ii. Inquiries do not negate prior offer
iii. A buyer/receiver cannot accept an estimate as an offer
iv. Butbids from contractors are considered offers; thus
subcontractors are heavily relied on
quotes
from
v. Consider factual context

1. HYPO: bring car to mechanic to fix dent; you know what youre dealing
with; you know exactly what needs to be fixed; a big difference btw the
estimate and the actual price would be unacceptableestimate is
more likely to be considered promissory
2. HYPO: bring car to mechanic to fix weird clanging noise; you dont
really know what the problem is; big difference in estimate and actual
cost here is more reasonableestoppels is less appropriate here
I.
Offer Problems
a. Form Letters [Lonergan v. Scolnick]
i. For our purposes, theyre more like an advertisement [doesnt usually contain
content]
ii. Probably sent to many people
1. Can rebut the form letter by showing that it was just sent to one
person; misleading form letters are bad
iii. Must consider how many items seller has to sell
1. Only 1? Not likely seller intended to be bound by letter to everyone he
sent it to
iv. Might not say this is a form letter
1. I.e. credit card offers you get in the mail; clearly sent to many
b. Look for something that might make a non-promise into a promise
i. An appendage of language; for immediate acceptance turns price quote
into an offer from seller to buyer [Fairmont Glass]
c. Reasonable value of service provided
i. Absence of price contract: you have to pay the reasonable value of service
provided, no matter how high, if you consent to having some home
improvements done
ii. Presence of price in contract: you pay the contracted price no matter what
the reasonable value of service provided is
d. Conditional offers
i. Example see Carbolic Smoke Ball [p. 12 of outline]
ii. Still an offer
iii. I.e. a promise to consider
iv. A conditional acceptance = a counter offer
v. Disclaimer = performance is conditional on certain things happening
e. Cannot infer the existence of a promise from the presence of contents!!cv b
f. Unjust enrichment doctrine: if the work is worth 42k but estimate was
for 31k, there is not contract at either price because estimates are not promises,
BUT under the doctrine if work is worth 42k, the worker is owed 42k even if there
was not a contract
J. Equitable estoppel- if someone deceives another and the person believed to

their detriment, then the contract can be stopped. Equitable remedy.
i. Components
1. Misrepresentation (should be intentional)
2. Reliance on misrepresentation
3. Damage
New construction v. visible repair v. hidden repair
Promise to pay tuition, then backs out day before school starts
p. 37
o
o
o
o
o
o
o
o
I would/will consider just promise to consider, not promise to sell

authorized to offer might be a middle man/broker saying this
Barrel (bbl) is a measure of capacity (volume); barrels are different sizes
Bu = bushel; measurement of volume; bushel = 8 gallons; can compress, so some
bushels will weigh more than others
I will sell you 1800 bu more or less. No difference, because you are paying by
weight
*** Be careful if quantity is given by volume and price is given in weight!!!!!!
F.o.b = buyers pay for transportation
#17: General contractors enter into contracts with owners and with
subcontractors. Prescriptive specs, architect tells him what to do and how to do it.
And owner will have contracts with architect and general contractors. The owner
and contractor are bound by contract, and the contractor relied on the quotes
made by the subcontractors. What if subcontractors low ball to get job, then their
price is higher than the bid, it would up general contracts price and affect the
contract between general contractor and owner. Dont have to prove that is was
misleading, just prove that they said it. Price quotes/estimates are deemed
promisory in this context.
o
III. INTENT TO MEMORIALIZE + INDEFINITENESS
A. Memorialization General
a. When do parties intend to be bound? [Texaco v. Penzoil]
i. Look for foreshadowing staterement or something that indicates a party
wants to leave the contract open
1. I.e. we will come back at five and sign the papers
2. I.e. draft of a contract is written on a receipt; probably want to
formalize it later, but the receipt is still enough to memorialize contract
now [Lucy v. Zehmer]
3. I.e. making an offer conditional
ii. Cant have a memorial if theres no agreement to memorialize
iii. Modifications or discussions to modify an agreement do not defeat or nullify a
prior intention to be bound
B. Do parties intend to be bound only by a formal, signed writing? Or do they intend to be
bound now even though they plan on signing a formal and detailed document later? 4-part
test [non-exhaustive]:
a. Whether a party expressly reserved the right to be bound only when a written
agreement is signed
i. If you have this, then you dont examine b, c, + d; if you dont have this
either side can use b, c, + d to strengthen their case
ii. Biggest deal breaker/maker
iii. Based on outward/objective words + deeds
iv. Parties must strike a balance; on the one hand, you want to advise client to
say in unequivocal language that they do not intend to be bound until later;
on the other you take the risk that the other party will renege as a result of
this condition
b. Whether there was any partial performance by one party that the party disclaiming
the contract accepted
i. If either party begins performance, they will have difficulty arguing that they
did not intend to be bound until later; can also be said of party who accepts
performance
ii. Partial performance preparation to perform
iii. Consider the time period between memorialization and performance; may not
be enough time to perform [Texaco v. Penzoil p. 49]
c. Whether all essential terms of the alleged contract had been agreed upon
i. The more terms parties dont agree upon/define, the more likely the did not
intend to be bound until later
1. The more important/essential the terms that were not agreed upon,
the more likely the parties did not intend to be bound before written
agreement
2. The more gaps the more likely court will find that there was no
intention to be bound
ii. May have statutory gap fillers for essential terms
1. I.e. the UCC sometimes provides terms for gaps in contracts
2. Thus, failure to have certain elements agreed upon does not
automatically mean theres no contract
iii. Content + intent are different
d. Whether the complexity or magnitude of the transaction was such that a formal,
executed writing would normally be expected
i. Perhaps this could be satisfied by a preliminary document
10
ii. If a reasonable man in the position of the other party either knew or should
have known that the other party did not intend to be bound in the absence of
a formal agreement, there is no contract until formal agreement is executed.
e. Non-exclusive list
i. Consider what else might help prove that someone did/didnt intend to be
bound till latersomething said/not said; something done/not done
1. HYPO: two roommates go on a search for an apartment; they split up;
roommate A finds a place; A + landlord negotiate; A says WEll be
back at five to sign the papers; evidence that they did not intend to
be bound until later when roommate got to see the apartment
C. INDEFINITENESS
a. Duration (doesnt always have to be explicitly present) [Haines v. New York]
i. Do not presume obligation of perpetuity [except in marriage]
ii. When do you have a duration problem?
1. When the contracting parties enter into an agreement that
contemplates a long term relationship [i.e. all the money is not given
up front]
iii. Duration does not apply to most contracts of sale
o Duration could be the amount of time you will finance money
o Contract does not fail just because duration term is absent
o Employment contracts require a duration but often arent present
o In acceptance, life of offer is not a duration problem
o In offer, intent to be bound before signed contract is not a duration problem
(Texaco)
o If duration isnt present, but needed use gap fillers for a reasonable duration. Use
facts to find a reasonable time. Show Bockrath WHY this is a reasonable time. UCC?
o Terms of payment sometimes factor in
o Tenure is a matter of duration, a contract with no expiration date. If Bockrath shows
up for work, he is fulfilling contract and wont get fired. He can get terminated,
tenure or not, if he doesnt fulfill contract.
Duration Needed for a Contract

*Situation where buyer/seller contemplate duration (i.e.
warranty on a car)
11
Duration Not Needed for a Contract

*Instantaneous transaction
*Long term relationship wont develop
(typical contract of sale of goodsone
off event)
OTHERS,
warranties, EMPLOYMENT,
service providers
franchises,
exclusive
distributorships
Present Absent
Present
Absent
*Contra *Court
*Contract *At-Will
cted
plugs
in
ed term
presumpti
term
REASON
on
ABLE
TIME
[Haines v.
NY]
iv. Non-Employment Contracts: how does court fill gap if duration is needed
and not expressed?
1. Reasonable Time
a. Determined case by case; measured considering what the
parties intend by the contract + the purpose they need to fill
b. Duration must be ABSENT to use reasonable time; if duration is
present, that controls, even if it is unreasonable!
c. If we agree to it, its reasonable
d. An extremely unreasonable time may give rise to a Lucy
problem [would someone in the position of the offeree be
warranted in believing that the offeror intended to be bound by
this contract?] i.e. a 500 year lease
2. Haines v. City of New York
a. New York contracted to build and maintain a sewage station
b. Court rejected that the city is perpetually bound under the
agreement
i. The agreement did not contain perpetual performance
ii. Parties did not intend for perpetual performance
c. Court said it could put in a reasonable time for the duration
based on what the parties intended
i. The parties intended the city to maintain the sweage
disposal facility until such time as the city no longer
needed or desired the water, the purity of which the plant
was designed to insure
1. Basically, whenever New York stopped taking their
water from the river.
o Generally agreed that where a duration may be fairly and
reasonable supplied by implication a contract is not terminable at
will.
o Duration is needed, but it is not present and non-employment
gap filler is reasonable amount of time
Whats a reasonable time if signing a lease in BR with no
duration term?
12
Month to month payment is not about duration, its about

payment
v. Employment Contracts: What fills the gap when duration not stipulated?
1. First question is: What is the duration of the employment? If there was
a duration none of the below matter. If it was At-Will then the only
chances of getting around the termination of employment are the
three exceptions below.
2. Wagenseller v. Scottsdale Memorial Hospital: At-Will Presumption in
employment
a. Employee can be fired or can quit at any time for no cause or
any good cause, but cannot be fired for bad cause
i. Three exception to the at will rule
o public policy: permits recovery upon a finding that
the employers conduct undermined some important
public policy
o based on contract: requires proof of an implied in
fact promise of employment for a specific duration,
as found in the circumstances surrounding the
employment relationship, including insurances of job
security
in
company
personel
manuals
or
memoranda
o good faith and fair dealing: courts have found in the
employment contract an implied-in-law convenant of
good faith and fair dealing and have held
employers liable in both contract and tort for breach
of that covenant
o key to all of the above: the proper
definition of a public policy that has
been violated by the employers
actions
b. Cannot apply where there is a contracted duration
c. Exceptions [how to overcome the at-will presumption]
i. Public Policy [comes from statutes, constitution, case law,
etc.]
1. Whistle-Blower statute
a. Firing in violation of an employee termination
statute
b. An at-will employee may not be fired for
doing x
c. Rare to find one
2. Firing for refusal to participate in criminal activity
required by employer
a. The magnitude of criminal activity does not
matter
b. This equals a bad-cause firing
3. Not all legislation is an expression of public policy;
not all public policy is expressed statutorily
13
4. HYPO: I work at walmart and think a certain product

is defective so I refuse to sell it to customers
5. HYPO: Working for an employer and boss asks me
on date and I refuse to go so I am fired
6. I am reasearch scientist in artificial sweeteners, I
am fired beacause I dont participate in research
that will lead to discovery of sacrin being safe and I
think this goes against constitution
7. HYPO: boss wants to write employer contract in
such a way the his employees cant have public
policy exception apply to themcan employer
contract his way out of this? Answer in case. Cant
contract out public policy exception.
8. HYPO: woman (nurse) declines to participate in a
legal abortion because of her religious beliefs; fired
against public policy?
a. It is possible that personal beliefs and public
policy coincide, but cannot use public policy
exception based solely on personal beliefs
b. In LA our publicy policy about abortion and
the law go against eachother
c. Personal views alone are not enough
9. HYPO: driver gets fired for not delivering pizza in 30
minutes or less b/c he drove under the speed limit
b/c it was raining
a. Driver could have completed the mission
without breaking the law, but driving
cautiously is covered by public policy, so this
is bad cause. Does not matter if you put
yourself in danger.
b. Can have violations of public policy that are
not legislative
10.***Cant fire for bad cause with at will contract or
any other contract, even if expressly provided
a. However, must ask if an employees
behavior is so egregious whether it would
actually be good cause to allow employer to
fire
ii. Personnel Manual Exception
1. Manual can become part of employment contract
can be used to rebut the at-will presumption
2. Employer can modify language in the manual by
behavior
3. Manuals are subject to estoppel
4. HYPO: you are a labor lawyer working for another
employer; employer instructs you to put a waiver to
public policy exception in the employee manual;
good idea?
14
iii. Good
1.
2.
3.
a. Nope! ***Cant fire for bad cause with at will

contract or any other contract, even if
expressly provided
Faith and Fair Dealing Exception
Its kind of like pornography, youll know it when
you see it.
Covenant of good faith requires that neither party
do anything that will injure the right of the other to
receive the benefits of their agreement:
a. The employee to do the work required by
employer
b. The employer to provide necessary working
conditions + pay employee for work done
c. I.e. Tenure: is agreement without expiration,
but can be breached if prof doesnt perform
Courts reject notion that this means good cause for
firing required notion obliterates at-will
presumption
d. Joseph Martin Deli v. Schumacher, agreement to agree

i. Had the phrase to be agreed upon in the lease
agreement for the extension of the lease.
ii. This is an agreement to agree. Always held unenforceable
Duration is 5 years (not like Haines or Wagenseller,
no gap)
Price: $500-650
Option to renew was paid for in the rent, rent would
have been lower had the option not been there
o Rent to be agreed upon
Agreement to agree is unenforcible
o It is an affirmative that parties had not
actually agreed on anything
Fair market value doesnt matter, parties never
agreed to fair market value
If it said can agree to renew at the future fair
market value this is ok
Delicatessen matters, are there actually two
contracts? Does the whole thing fail because one
part fails? (Eckels v. Sharman)
A contract is a private ordering, fairness doesnt matter

Cant fill in an agreement to agree in terms of what you think is
fair (as a judge)
15
In UCC agreement to agree can be enforcible

2-204(3)
parties intended to make contract:
o promisory language
o the more terms left open, the less likely they intended
contract
o reasonable certain basis for giving an appropriate
remedyreason why quantity term can almost never
be filled in
vi. Franchises [duration unstated]

1. Amount of the investment
a. The higher the capital expenditure, the more likely the parties
are contemplating a long-term relationship rather than at-will
b. HYPO: Burger King franchise v. Home360; Burger King requires
huge franchise fee and building restaurant; Home360 just
requires a sign on your truck
2. Fungibility
a. Can the asset be easily transferred into something else if
contract is terminated?
b. The more fungible a franchise is, the more likely the parties are
contemplating a short-term/at-will relationship
c. HYPO: Burger King v. Self-Storage Franchise; Burger King
restaurant building can only be used for a Burger King [low
fungibility]; Self-Storage building can be used for privately
owned self-storage operation, dont really need the franchise
[high fungibility]
Hypo: Home repairs. Home 360 is pretty much an

answering service. Assigns a home 360 franchisee. Want
to be plumber, buy home 360 franchise, use your own
tools, own truck (checks written to home 360). Duration
for franchisee?
Open a Burger King, buy franchise. Use name,
advertising, products. Are all franchise agreements the
same in respect to duration?
BK duration v. Home 360 durationduration term is blank.
o BK investment is much larger
o Might fill in duration term as a reasonable
time
o What is a reasonable time? Enough time to
make back investment? The longer it takes
to recoup investment, the longer a
reasonable amount of time is
o 360 isnt much of an investment.
o At will is what we use when there is a gap
in terms of duration
16
3 categories: Haines, employment, franchise
b. Terms of Payment/Price Term

i. Sale of goods, or?
1. UCC
a. Applies only to sale of GOODS; excludes real estate +
services, employment labor
2. Hybrid Contract
a. BMC v. Barth
i. Court held the contract was for goods rather than services
ii. Use Predominant Factor test to determine if it is mostly
a contract for goods; look at:
1. Contractual language [buyer, seller, product,
purchase order, equipment]
2. The bill; were you charged more for installation or
the item?
a. If not lumped together, see if goods were
more expensive than services
b. If priced separately, some courts dont apply
predominant factor rule. They will apply UCC
rule to the goods part of contract. This can
cause lots of problems. (Eckels v. Sharman)
ii. Gap fillers; a contract wont necessarily fail for want of a price term/payment
term [but remember, the more terms left open, the less likely it was that
parties intended to be bound]
1. Price ascertainable? Use market rate, etc.
2. UCC 2-204(3) Formation in General
Even though one or more terms are left open a contract for sale
does not fail for indefiniteness if the parties have intended to make
a contract and there is a reasonably certain basis for giving an
appropriate remedy
3. UCC 2-310
a. Use to fill a gap in contract for sale of goods if the parties have
not agreed upon a term
b. Common law would not impose a reasonable price upon a
contract
c. UCC 2-310 [payment method]
i. Unless otherwise agreed, payment is due at the time and
place at which the buyer is to receive the goods
4. Southwest v. Martin
a. Inquiry with respect to a price (not a quote) and received a
price quote of $18,500

b. Southwest used the quote on his bid and the bid was
accepted
c. Generator was described with a product number
17
i. Subcontractor quotes are usually relied upon (unless
d.
e.
f.
g.
they specifically say they are not) because everyone

knows they will be relied upon
There was an agreement to the $21,500, so there is no
question as to why the $18,500 was promissory or not
Doesnt matter if we know what D353 means, only matters
that parties in contract know what it meansspecific
enough for quality term
i. Shop drawings are probably specific, custom work
Directed Martin to proceed with shop drawings (not an off
the shelf generator)
i. Indicates custom work and custom work is usually
paid in increments.
UCC 2-310: open payment method?? supplied the missing
payment terms because they were not agreed upon.
i. Predominant factor goods UCC
ii. The parties clearly had an intent to be bound, so the
missing payment term did not render the contract
null and void
FYI: when you buy a car you borrow money from the lender, and
the dealer gets the money in full right away from the lender,
then you pay then lender back over X amount of months. UCC
probably wont apply to loan.
Custom made wedding gown is probably a transaction in goods.
Drafting order blank for this sale. To protect client in case of
custom made wedding gown put something in the contract. Most
of the time money up front is required for custom made goods
risks the gown maker takes. If there is a custom of the trade may
be able to fill in the game with the custom of the trade.
5. Consider the facts
a. Lower the price, the more likely the parties were considering
cash on delivery
b. Sale of custom goods? Then probably not thinking cash on
delivery; probably will spread out payments to protect buyer and
seller
c. HYPO: buying a car
i. Ordinary payment method is cash on delivery easy to fill
in gap for payment terms; contract wouldnt fail for lack of
payment method
ii. Separate contract with bank for loan harder to fill in
gap
1. Many factors to consider: down payment amount;
interest rate; length of loan
18
2. This contract would likely fail for want of payment

term; cant easily fill in what parties were
contemplating
3. UCC doesnt apply here
4. Make purchase of car contingent on securing the
loan [otherwise you still have to pay for the car
regardless of whether or not you secure a loan!]
6. Custom of the Trade
a. Not a substitute for UCC or terms of a contract
b. If a term is not agreed upon for a sale of goods, must fill in with
UCC!
iii.
We agree now to agree later

1. Explicitly expressing that at present, there is no agreement
2. Leaves a term open for future ascertainment without providing a
method for its objective determination
a. Must always have quantity or else there is no way to calculate a
remedy
3. Renders a contract unenforceable in common law; changes with UCC
4. An open term, meaning nothing is said, is not the same thing as
agreement to agree
5. Usually will fail a contract
iv. UCC 2-305 re: Open Price Term
1. Gap of price filled in with reasonable price at the time of delivery if
parties have not agreed to a price and/or parties fail to agree
[deviation from common law]
2. Also makes an agreement to agree enforceable [w/ sale of goods]
3. Parties must intend to be bound by the contract for UCC to apply
v. Oglebay v. ARMCO [p.72]
o 2-305(1) Open Price Term
The parties if they so intend can conclude a contract for sale even
though the price is not settled. In such a case the price is a reasonable
price at the time for a delivery if
(a) Nothing is said as to price; or
(b) The price is left to be agreed by the parties and they fail
to agree; or
(c) The price is to be fixed in terms of some agreed market or
other standard as set or recorded by a third person or
agency and it is not so set or recorded
1. An agreement to agree
a. Originally depended on Skilling Mining Review (industry
publication) to fill in the price term with current market price;
but it stopped being published
b. So they have to go to an agreement to agree
2. UCC normally wouldnt apply b/c this is a service, not sale of goods
3. But, great evidence to show that the parties intended to be bound
[language from UCC] by a contract
a. Longstanding and intertwined relationship btw the parties
19
i. They owned stock in each other, members of board of

Ogelbay sat on board of Armco + vice versa, Ogelbay
made major capital improvements made to accommodate
business generated by Armco, an Ogelbay ship was
named after Armco
4. So court applied the UCC standard to fill gap for reasonable price
term despite the agreement to agree and the fact that this was not a
sale of goods [UCC persuasive here]
5. UCC is not the law in this case, but the force that persuaded the law
c. We now have 3 categories of indefiniteness
Agreements
agree
to
UCC 2-305 fills open price

term/ UCC 2-310 fills open
payment method term
Other [Ogelbay]
d. Eckles v. Sharman: Severability

i. If you have a contract that has 2 or more aspects and one aspect fails, the
you must decide if you have one contract or multiple contracts
ii. Issue: is the option and pension so essential to the contract that failure to
agree on pertinent terms made the contract unenforceable.
iii. Contract: UCC does not applycontract for services
1. Price: 55k/year w/ 5% yearly increase
2. Quality: basketball coach
3. Quantity: one position for which he was being hired
4. Duration: 7 years (wagenseller has no application here, no gap in
duration here)
5. Option to purchase team- agreement to agree
6. Pension plan: no price, no quality
7. Severability clause: if any one paragraph fails but two clauses
failed here
a. Bill sharmans position would be that 2 failures were essential to
him. But for the option and pension he woul not have entered
into the contract.
b. Pension plan- Sharman says pension plan was important to him
because it was a risky more for him to leave the NBA for the ABA
c. Unstated price in option:
iv. Use essentiality test [test for severability; not the same thing as asking must
I have this element to have a contract at all?]:
1. Examine the elements [terms] of each agreement in order to show how
essential each element [term] is to the contract.
2. Determine whether the parties would agree to one part [term] of the
contract without the other part [term]. If they still would have agreed
minus the second part, then the contract is severable and the first part
[rest of the contract] does not have to fail for lack of the second part
3. If part of an agreement is indefinite and part of it is not, should the
part that is indefinite be disregarded and the remainder enforced?
20
a. Yes, if the contract has proven to be severable

b. The test seems to be whether the parties would have entered
into the agreement without the indefinite parts
4. Is it one contract with multiple separate parts? Or is one so dependant
on the other that you cannot separate/eliminate the parts from the
whole without damaging the integrity of the contract?
v. Look out for severability clauses if it is applicable then you follow that
1. In this case the severability clause said if one clause fails
a. 2 Clauses failed, so severability clause fails
vi. HYPO: say a party opening up a deli agrees to a 5-year lease with an option to
buy the space after five years; if essentiality were the test, would deli owner
have entered into the contract without the buyout option?
1. Seems like the option is essential; perhaps he would have chosen
another location; in this business location is important for deli and you
build up a clientele; wouldnt want to have to move in 5 years once
lease is up
2. Compare to a lawyers office; change of location would not affect
business since majority of business not walk-in, and clients dont come
to the office that often;
vii. HYPO: you order 500 bolts @ $1/bolt and 500 nuts @ $1/nut (they are the
same size); is this a contract for the purchase and sale of two different
things? Or is it two contractsone for nuts and one for bolt?
1. If the size of the bolts and nuts match then it is more likely that it is
one contract
2. If the order is on one form, then it is more likely that it is one contract
a. Say the price for nuts is blank. In this hypo ucc doesnt apply.
b. If it is one contract it is not severable.
c. Essentiality is the testmight be buying them together because
they are the same size. Nuts might be severable if they werent
the same size.
d. What if there is a price for both of them but nuts doesnt have
quantity term. Can we fill the gap? Maybe fill it in with the
amount of bolts.
e. A long term relationship. Might be able to determine what
theyre thinking is now by virtue of what thinking has been in
the past.
HYPO: will sell my car and boat. Car price term fails. Is boat severable from
car? Test for severability: is it essential?
HYPO: now compare with Martin v. Schumacher.
o Option to renew didnt have price, just agreement to agree. Not
a UCC problem because not dealing with goods.
o Or, someone has a 5 year lease with option to renew, but wants
to break lease after 3 years bc business isnt making any money.
then you would need to establish that the contract is a whole
(5 year lease and option) is unenforceable contract fails
because option fails.
Location for deli is important, not important for
lawyers office
Unless lawyers office is by bail bondslocation
might be important
21
Problems on p. 81
19. Bettencourt: 1st class theatre was sufficient quality term. Quality term for
railway station: neat and tasteful. There has to be correlation between the terms
and where the thing is. Trailer park/country club will have different definitions of
neat and tasteful. Use facts of question to answer question. All that was really
sought was a general result sufficiently definent and certain.
20. Blueprints may not ever specify material, but spec sheet should. UCC case?
BMC gives us case. Remodel might lend to services. But it says specification of
materials which could lend to goods. Test is predominant factor. Specification of
materials quality term. What about figuring out qualities of materials from price?
Is there relationship about how they cost and the qualities? No. Paintmost
important quality (descriptive) is color, but price can very due to quality (used in a
different sense). Could say materials have to be compatible with what is already
there (remodel). Court says no contractdont know what they were contemplating.
21. Can probably figure out a reasonable price. Appraisal. Put on market.
22. No blank w/ terms of payment. Not a UCC transaction. What if offered 120k at
law firm and partener decides you are not worth that and fires you. Can you say
contract is not valid bc there is no terms of payment? Could look at custom of the
trade. Or, if you are getting paid 1k per week..what is the duration. Opinion: court
will leave it for the jury. Majority view: this is a hiring at will
23. UCC article two. Can have an open price term under UCC if parties intended to
be bound and there is a reasonable price to be found. UCC does not fill in for
quantity.
24. UCC article 2, last sentence almost always requires quantity term to be present.
25. every reasonable effort to agree imposes a good faith effort to negotiate.
26. shall be mutually agreed upon at the time of entering into a more formal
contract. Did they intend to be bound? If yes, try to fill in gap w/ respect to
amortization period. UCC does not have a gap filler for amortization period.
Know the default

Put a concrete term
in
Leave it blank
Agree to agree
You are bound to the specifications of

this term
Contract might fail for lack of a term;
but court might be able to fill in the
term gap
You may be able to lawyer yourself into
a contract that would typically faili.e.
Ogelbay
IV. ACCEPTANCE
Acceptance rules:
o The first place to look for acceptance rule is in the offer itself
o Advertent: acceptance rules located in the offer, by the offeror, with
knowledge thats what he is doing
o Inadvertent: offeror put acceptance rules in the offer without realizing he did
o Person who makes the offer
22
Person/Entity who provides the form on which the offer is made- just because
seller provides the form, doesnt make seller the offeror (catalog order forms)
Bilateral: need two promises
Unilateral: need only one promise
Start what it says, rather than what it means
Offeror is in control initially of almost everything
o If offeror doesnt put any acceptance rule you apply default rules
o Offeror is in control of acceptance rule, with one exception: the offeror
can not impose upon the offeree the obligation to say no
o CDs example: if you dont want it, send it backthis is OK
o However, the offeror cannot impose a negative in
o
the offer
For example: If you dont reply then you accept my offer.
Bilateral/Unilateral: ultimate performance is the same

I will give you $10 if you cut my yard- unilateral, accept offer by cutting the lawn
act is the acceptance and the performance
o Must do the deed and must intend to accept it at the time you do the
act
o If you dont have the intent to accept the offer, the performance is not
the acceptance
I will give you $10 if you agree to cut my yard- bilateralacceptance is the promise
to do it, performance is separate
Presumption is that if you knew about the offer and performed the act, you
performed the act with the intention to accept
I will give $10 to whoever finds and returns my lost dog (announcement over radio)
o Performance is returning the dog
o Returning the dog is the acceptance
o If offer is unilateral, dont have to notify offeror that you are going to
accept
If cutting the lawn is the acceptance of offerunilateral (but lawn is at vacation
home) it is not unrealistic to need to notify offeror of acceptance, bc otherwise you
would not know lawn got cut and would hire someone else. If lawn is at your house
(w/unilateral) and you are sitting on the porch and guy is cutting yard, not
necessary for him to notify you of acceptance, the act is the acceptance.
Silence is not acceptanceunless it is
Have to know about an offer but dont have to understand itparties who sign
contracts will be bound by them regardless of whether they have read them or
understood them (MCC-Marble Ceramic)
What about concert ticket that says no recording allowed but you didnt read it, or a
parking ticket that waives all your rights but you didnt understand or readstill
bound by contract
23
A. General/Default Acceptance rules:

a. Must know of the offer before you can accept it (Cannot be induced to do
b.
c.
d.
e.
f.
something to your detriment if you dont know about the offer)

The promise must induce the detriment
i. I will give you 10 dollars is the promise
ii. Cutting the lawn is the detriment
The only person that can accept an offer is the person to who the offer is
made
A person can extend an offer to many people at once (reward)
Offeree must intend to accept the offer at the time of performance
i. The presumption is that if you knew about the offer and you were in
the class, which the offer was extended to then you intended to accept
the offer
You only have to be motivated by the offer in part
i. You can accept because you are a good person, but still have to be
motivated by the offer
ii. The amount of consideration doesnt matter (the kind may matter)
B. INTRO
a. MASTER OF THE OFFER: Offeror has control of content as well as acceptance rules;
can define them however he wants
i. Exception offeror cannot make offeree communicate a negative
1. I.e. Ill assume that you accept unless I hear from you otherwise
ii. Therefore, offeror must bear the consequences if he does not protect himself
by adding requirements to the acceptance provisions
iii. Only transfers the power to the entity to which the offer was made!!!
C. TYPES OF OFFERS + MODES OF COMMUNICATING ACCEPTANCE
a. UNILATERAL
i. Promise seeking an ACT [fully completing the act requested = acceptance]
NOT commencment of the act! Offeree must know about the offer.
ii. No requirement to communicate acceptance. But, normally a requirement of
notice after performance is complete.
iii. One promise needed [from the offeror]
iv. I will give you $10 if you cut my lawn
1. Reward is a unilateral offer
v. In ordinary case of uni there is no need for offeree to notify offeror of their
intent to perform; just have to perform [otherwise there is no distinction btw
uni + bi]
1. Carlill v. Carbolic Smoke Ball [p. 107]
a. CONDITIONAL OFFER $ will be paid if the ball is used and user
still gets flu
i. Use of the ball as instructed is the acceptance
ii. Contracting the flu is the condition
iii. Promise: will be paid could be prophetic. But prob not a
prophecy because company that wrote ad is the company
that will pay. Typically dont prophecize about your own
24
actions. And money was in bankcould be enough to

overcome lack of promisory language (if there is a lack)
iv. Quantity term: any personmay be big liability
exposure but it is not inadvertent
v. Quality term: applies to the carbolic smoke ball
vi. Cannot have a conditional acceptance I will buy your
house if I can get a mortgage is not an acceptance
could possibly be that you have now made an offer
vii. HYPO: Carbolic smoke ball is given to Shultz as gift, can
carbolic make the argument that Shultz did not see the ad
so they did not make an offer to him? Ad says any
personOK.
viii. Not necessarily a sale of good (UCC) just because a good
is involved..end product is to not get the flu
ix. After she contracts the flu, she will have to ask for the
money, that is the notification of acceptance of offer
2. BUT when unilaterals are made other than a face to face transaction
the offeree may have to inform the offeror that he has completed
performance
a. Unless offeror is in position to learn of the performance [i.e.
performance occurs in his presence]
b. The ad was a promise because of the quote 1000 is deposited
with the Alliance Bank, showing our sincerity in the matter
c. The performacne of the conditions of the ad was the acceptance
of the offer
d. Do not have to communicate the acceptance only that you
performed the act if the other party has no way of knowing you
completed the act
HYPO: hear on radio mike the tiger escaped and anyone

who returns it will get reward. If you return it you should
get reward.
o Butdriving to lsu and see the tiger and throw
mike the tiger in your carthen you hear on radio
that the person that find and return of the tiger
would get an award.
Do you have to release the tiger, re- find the
tiger and then return to get award?
Rule is you generally dont have to
release and re-find
3. Leonard v. Pepsi
Commercial was an ad to receive offers, rather than an offer of
reward
Questions on p. 92
25
27. Family members- balfour. Offer: Price-20k; Promise- I will; Quantity- you; QualityPBK. Acceptance is made by getting into PBK. No contract. Unilateral, offeror in
control. If she achieved PBK, still not an acceptance bc once she has responded in an
innappropriate way has voided the contract. put in pencil says rath
28. Only and or. Offeror offers to the offeree a choice of possibilities. Bilateral choice
or unilateral choice. The performance of the work and the beginning of the
performance are two different things. Unilateral contract is accepted upon
completion of work. Requirement to communicate acceptance has not been
dispensed with. For performance of work, does the offeror have to be notified of
completion?
29. Bilateral. In the presence of A. This does not say only unlike 28. What
consequence is it that the act was done in the presence of offeror? Promissory act
starting to rake says I promise to rake yard. What if he stops half way through?
Breach of contract? If it is bilateral and promissory act, he has to complete raking the
lawnhe promised to rake lawn. What if I will give you $100 if you repair my lawn
and repair man open hoods and starts tinkering. Is this a promissory act? When you
start raking lawn you aware of scope of work upon starting the act. This action may
not be promissory by mechanic.
30. Offer can be revoked at any time without penalty, bc no consideration to support
my promise to hold offer open for 3 days. Promise of gifts are unenforceable. Option
is a purchase of irrevocability. I like house, but want to talk to my wifehold it for
one week. Then I sell to someone else. How does buyer protect himself from seller
selling to someone else. Promise to hold house for one week is a gift, can revoke.
Can purchase the option period, so then it could not be revoked.
It is bilateral, offer is open for 3 days. He began painting, promissory
act? Well it doesnt say whether is was in the presence of the offeror. It
is January and it is a summer house. So likely not in presence of
offeror not a promissory act.
31. The buyer is the one making the offer. He has already paid. Suggests not a
promise seeking an act, or a promise seeking a promise. It suggests an act seeking
a promise. REVERSE UNILATERAL. Apply bilateral rulesseeking promise. Reverse
unilateral and bilateral are both seeking promises.
32. initial offer of reward is unilateral. Return was made. Cannot accept offer if you
didnt know about it. A had object, then found out about reward, but before
returning the object. Key is he had already decided to return it before finding out
about reward. Must do the act sought by the offer with the intention of accepting.
When he turned object in he didnt mention the reward. Is evidence of subjective
intention admissable? Current law, A cant testify as to his subjective intention.
33. Not Balfour. Not family members, or married. D and P are not brothers. For
promissory act, have to be in the same placehave to be able to see it. Things
done in writing are things done by phone or electronically. If sequence of events
were different, problem would be differentafter signing. Unilateral. If it were
bilateral, there would not be an acceptance. Couldnt be a promissory act bc it
wasnt performed in the presence. If it is bilateral there is a duty to notify offeror of
acceptance. For unilateral contracts (rewards), there is no obligation to notify offeror
that you are acceptingbut a rule to notify offeror that you have performed if the
offeror has no way of knowing that you performed. After signing, attempted to notify
but D never received. Is mailing letter sufficient? Or, does D have to receive notice?
Trying to do it is probably adequate as long as your attempt was adequate. First
class mail is probably adequate, if postage stamp was not enough then it wouldnt
26
be adequate, has to be done right. Cant expect P to call D every day to see if D
received the letter.
o Cant accept an offer you dont know abouttiming of letters. What if I
send letter to G saying I want to buy car, before G got my letter he
sends me a letter offering to sell car. Letters cross in the mail. Contract?
Should court ignore the common law rules in this case.
34. No relationship between offeree and offeror and who provided the form. Offeror
is always the one in control. Purchaser is making an offer on the form provided by
the seller. If what he is seeking is an agreement (which is a promise)bilateral. If
bilateral, there is an obligation to notify offeror of your acceptance. Accepted by
buyer and signed by seller.
a. If D never signed violation of acceptance rules, no contract
b. offeror is in control can dispense of requirements. Did offeror dispense
with the requirement that he be notified. Buyer is offeror, fact that seller
provided form doesnt matter. This becomes a contract when: sets forth the
exact moment when contract comes into existence. Dispensed with
requirements Normally doesnt become a contact until communicatebut
says it becomes a contract when signed.
c. Does not say it becomes a contract. Does not give exact moment of when
contract comes into existence. Does not dispense of requirement, would still
need to notify.
35.
Bilateral. Difference between 28 and 35 is performance rather than
commencing performance Acceptance of unilateral contract is the completion of
the job.
vi. Beginning performance does not bind the offeree but makes the offer
irrevocable
1. BUT you cant always tell if the act is acceptance of the offer [grass
cutting fetish?]
2. The acceptance is still not established until the performance is
complete
b. Unilateral Cases
i. Broadnax v. Ledbetter
1. The person claiming the reward had no knowledge of the reward at the
time of the capture
2. The offer has to induce the detriment, so a person can not accept the
offer if he does not know about
ii. MCC-Marble v. Ceramica
1. A representative of MCC claimed they are not bound by an agreement
because it was written in Italian and he neither speaks nor reads Italian
2. Court held that people who sign a contract can not get out of it simply
because they failed to read it/didnt understand
c. BILATERAL
i. Promise seeking a PROMISE [commitment to perform = acceptance].
ii. Requirement/duty is to communitcate acceptance. Unless dispensed with by
offeror.
iii. Two promises needed [from offeror + offeree]
27
iv. I will pay you $10 if you promise to cut my lawn; If you will paint my
house, I will pay you $50
v. Silence is not acceptance in ordinary bilateral case; must communicate
promise; beginning of performance without communication of promise is of
no effect unless done with the knowledge of the offeror; presumption against
acceptance by silence
1. EXCEPTION master of the offer can dispense with the requirement
for communication
a. I.e. This agreement becomes a contract when
i. Not the same as This agreement shall not be binding
unless which doesnt say when contract comes into
existence
2. BUT there must be proof of performance if communication requirement
is waived [do not worry about HOW to prove but WHAT to prove]
3. Can communicate acceptance non verbally by beginning performance
in the presence of offeror
a. Do not have to complete performance to establish acceptance
b. Look at the facts of the problem to determine whether the
offeror had knowledge [i.e. the summer house being painted in
January, offeror is in Nova Scotia and offeree is in New York]
this is where you get points on the exam; explain how the
requirements of the acceptance rules have/have not been met
i. Locations of each party
ii. The dates included in the problem
iii. Relationship history of the parties
iv. Nature of the relationship of the parties [relatives?
business partners?]
vi. You will be bound to something you promise in a bilateral contract regardless
of whether you can control it.
vii. There is a presumption of an offer being bilateral if ambiguous
viii. Offeree must communicate his acceptance whether or not the offeror
stipulated how to communicate
ix. Leonard v. Pepsico
1. The commercial urged consumers to accumulate Pepsi Points and to
refer to the Catalog to determine how they could redeem their Pepsi
Points.
The commercial sought a reciprocal promise, expressed
through acceptance of and compliance with the terms of the order
form.
d. REVERSE UNILATERAL
i. Only promise is made by the offeree
ii. Act seeking a promise [promise = acceptanceapplying the bilateral rules!!]
iii. Commonly missing a price term
iv. Example: A, a property owner, pays $500 to an insurance company asking for
the companys promise to pay A $200k if As house is destroyed by fire
1. A is the offeror but has made no promise
v. Example: A sends in $20 + a med school application to induce the school to
promise to review his application
1. When the check clears there is acceptance
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vi. Example: A sends email telling B they have deposited payment for shipment
of 15 hats and to please respond with their reply
e. UCC
i. 2-206 changes common law rules of acceptance
ii. It is important to maintain/understand the distinctions btw uni + bi b/c of
language in UCC:
1. Unless otherwise unambiguously indicated by the language or
circumstances
f. NOTES:
i. Buyer/seller v. offeror/offeree
1. Bock says that the offeree can be buyer or seller
ii. Most of the time offeror does not contemplate whether theyre phrasing an
offer as unilateral, bilateral, or reverse unilateral
iii. Provisions = acceptance terms
iv. Offeror can give a choice for acceptance rules [i.e. perform or promise]
v. An offer is bi or uni regardless of what offeree does in response to the offer; it
is all about what the master of the offer seeks!
vi. Master of the offer [offeror] is not necessarily the one who will provide the
contract document [but this doesnt matter]
1. BUT the offer is not made when the offeree give the offeror the
document; only is an offer when the seller gives signed doc back to
offeree to sign
vii. Upon commencing performance = bilateral; upon performance =
unilateral
D. OFFER PROBLEMS
a. When can you accept an offer?
i. Rule: you must first know about the offer before you can accept it
1. The order of events is important!!
2. You must perform with the intention to accept
3. An offer can exist without offeree knowing about it
ii. Simultaneous identical cross-offers
1. Hypo: bockrath is selling a car and sends you a letter saying I will
send you my car for $1,000; at the same time you write a letter telling
Bock that you want to buy his car for $1000; is there a contract?
a. An exceptional situation: each offer could be the acceptance of
the other
b. Who can accept an offer?
i. Only the offeree can accept the offer, or one who is warranted in believing
the offer was made to them
ii. HYPO: you take the bar exam and pass so you start getting the LA Bar Journal
in the mail; BarBri takes out an ad in the journal saying if you failed the bar
exam and took BarBri then we will refund the course; you put the ad in the
student lounge and a student who failed sees the ad; was the offer made to
him b/c he failed or not b/c he is not a recipient of the Journal? Can argue
both sides
c. Intention to accept + motivations for performance
i. Offeree does not have to be motivated solely by the offerors offer; motivated
only in part is sufficient
29
1. HYPO: Bock sends me a letter saying that he will pay me ten dollars if I
cut his lawn; I cut the lawn; we have no evidence to prove whether I
was motivated entirely by the reward or if I also really like to cut
lawnsdoesnt matter as long as I am motivated in part by Bocks
offer
ii. In unilateral context, unless there is evidence to the contrary, if I make a
promise and you know about it and you perform, we will assume that you
performed intending to accept my offer
1. HYPO: a woman loses her engagement ring and says she will pay
reward to whoever returns it; I find it and return the ring b/c it was the
right thing to do and dont ask for the reward; thus I was not induced
by the reward, thus no offer
2. Presumption is that I was motivated by reward
3. But this presumption is rebutted if I do not ask to collect the reward or
reject the reward when offered to me
4. ***Must have the intention to accept the reward prior to or at the time
of the performance
5. Inquiry into the motives of the offeree is ordinarily unnecessary; if
offeror tries to contest:
a. Offeree cannot testify to his intentions [this violates objective
theory]
b. Will have to have evidence about why I did not ask for reward
[too shy? etc.], or testimony that I told someone earlier about
wanting the reward, etc.
E. ACCEPTANCE or OFFER BY & CONDUCT
a. Ordinarily silence does not give rise to an acceptance of an offer; can create
ambiguity as to whether silence is acceptance or ignoring the offer, or what [there
is a duty to speak when silence would be deceptive and beguiling]
b. HYPO:
i. USC 3009 Mailing of unordered merchandise
1. Basically says that unordered goods mailed to someone are to be
considered a gift
2. Dont have to send it back to reject it
ii. EXCEPTIONS
1. Issue is whether the relationship of the parties and the circumstances
justify the offerors expectation of an explicit reply if the offeree wishes
to reject the offer
a. Expectation based on a pattern of behavior
b. What party does or doesnt do is significant
2. Parties can mutually agree that silence will manifest assent
3. ACTS OF DOMINION [see problem 39, 40, 41]
a. When an offeree acts in a way that is inconsistent with saying
no, he will be deemed to have said yes (absent any other
contractual obligation or previous relationship)
b. Saying yes by virtue of your actions; affirmative conduct
c. Conversion [may want to find conversion for client if the value of
the book is less than the retail price b/c converter only has to
pay back the items value]
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i. I reject the offer and am keeping your stuff

ii. Requires clear expression of intention [verbal]
d. Bilateral offers cannot usually be accepted by act of dominion
c. Day v. Caton A promise can be inferred from the conduct of the parties
i. Plaintiff expected defendant to pay for half the wall. Defendant had reason to
know of this expectation and did not object
ii. Thus, defendant accepted by silence
iii. Silence accompanied w/ knowledge on his part that the party rendering
services expects payments can be treated as evidence of acceptance
iv. 1. Expectation of payment of act by offeror 2. Offerees Knowledge
of expected payment 3. Opportunity to reject (allowed to act without
objection)
v. HYPO: building fence. Does it matter if you are building a fence to keep your
dog in or keep another dog out? Could definitely make a difference.
vi. HYPO: B on porch, A drives up and starts cutting Bs grass. But what if sign
says: I cut lawns for $20easyA expects pay and B has knowledge. (did B
have the opportunity to reject?)
d. Wilhoite v. Beck relative comes to stay with Beck for 20 years; no agreement
about paying for room and board; does estate have to pay Beck? Is there an implicit
promise?
i. This is a reverse unilateral (Beck provided (act) services seeking the promise
to pay for them)
ii. Presumption of gratuity btw relatives; but these parties not close enough
[2nd cousins]Balfour presumption will work differently.
iii. If B doesnt have a job, and B owes A money, As expectation of payment
should be lower Flossie had a job; Beck had a job.
iv. Beck never asked for money sign that she may have not expected payment
v. Dead man statute: Mrs. Beck cannot testify about what dead lady said. Bc
she can lie and dead lady cant argue for herself.
vi. There is no evidence that Ms. Flossy ever made a promise directly [not the
same as saying there never was a promise]; is there an implied promise?
1. YES court finds a promise: Flossy was there for 20 years + that she
was independent; the will said that all just debts would be paid; Flossy
told people that she would take care of Beck + made her beneficiary in
will
e. Hobbs v. Massasoit Whip found a promise inferentially [inference is not a guess!]
i. There was an established business relationship btw the two; this was not the
first time they had entered a transaction like this. Implied promise to pay
through a pattern.
ii. In this case silence in retention of the goods created a duty on the offeree to
notify the offeror of rejection of the offer b/c silence/keeping goods normally
meant acceptance btw these parties
1. 39 USC 3009
a. the mailing of unordered merch constitutes an unfair method of
competition and an unfair trade practice
b. Any merch mailed, may be treated as a gift by a recipientand
can do whatever they see fit with the merch. Mailing of
unordered merch is prohibited.
d.
unordered merchandise means merch mailed w/o the prior
expressed request
or consent of the recipient
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f.
MUST have the 3 conditions to find an offer when there is silence [if they are not
met, silence is not OK]
i. There was an expectation of payment when offer is made
1. Payment does not have to be exclusively monetary
2. Justifiability of expectation increases with the amount of work you are
asked to do for a client
3. BUT if offeror had an expectation of payment at the time offeror did
the work, why wasnt it expressed? The longer the offeree waits, the
less likely they expected payment at the time of the offer
ii. The offeree must know of the expectation of payment [on notice]
1. Probably not an expectation of payment or a knowledge of expectation
of payment when couples are living in amity [Balfour] or between close
relatives
a. When a reasonable person would conclude that services are
rendered gratuitously, there can be no recoverythere is no
offer; where recovery is allowed it is considered a reverse
unilateral contract that is enforced
2. Services are not returnable!
iii. The offeree must have the opportunity to reject the service
1. If service receiver is not present, there is no opportunity to reject
2. Must reject in a reasonable time
iv. HYPO: what if I start cutting bocks lawn in his presence (not in response to
an offer), but I do it hoping that he will pay me when Im finished
1. Bock would likely know that I was expecting paymentunless I have
grass cutting fetish
Problems, p. 101
36. Remaining silent not intending to accept, and remaining silent intending to
accept are different. Compare to 34(b). If he intends to accept does he then have to
notify offeror?
37. This problem assumes Balfour presumption does not apply. Reverse Unilateral
provide services in exchange for his promise to pay for them. Did she have an
expectation of payment at the time she provided the services? If she had an
expectation of payment and kept it to herself, would he have knowledge of the
expectation of payment?
38. Hobbs.
39. 39-41 w/o reference to 3009. Actions are inconsistent with saying no. Giving
away and trowing away are not the same. Acceptance by conduct. Are his actions
more like setting it down and waiting to return it or more like sitting down and
reading it yourself? Giving to wife is more like reading it yourself..which is like acting
you say yes.
41. In letter he said no, but act of dominion says yes. He has attempted to become
offerorconverter. Is saying I will not pay more the $25 an offer to pay $25? A
counter offer cancels the previous offer.
42. $500 for water is manifestly unreasonable.
43. probably no knowledge of expectation and no opportunity to object no
contract. Unjust enrichment statute. Deed to land includes the structures that are
later built on the land. Gift.
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44. No such thing as giving someone an option, if its given its not an option, option
has to be paid for. Haines v. New Yorkblank duration term. Will not impose
perpituity on them unless agreed to. No problem to duration, duration is perpetual
because thats what they agreed to. Offeror is in control of acceptance manner.
Doesnt say it is to be done only in this way. D acted in a way that was inconsisten in
saying no act of dominion
Credit cards makes changes to account:
you likely consented to this when you took out the credit card
You are the offeror when you get the form
act of dominion
The agreements almost never promise to honor the card. Customer
promises to pay if the card is honored.
F.
SHRINKWRAP + CLICKWRAP (ProCD v. Zeidenberg p. 127)

i. Many times student editions are cheaper, even though you are getting the
same thing
ii. They are cheaper because you are paying w/a promise not to use for
commercial puposesthats where the price difference comes in at
iii. This case: limited to non-commercial use. This notification was INSIDE the
box. License agreement.
iv. Easterbrook: He didnt make the offer when he put the box on the scanner,
store made offer when they put it out in store. Who is offer made by????
What is the contract?
v. Is buyer bound by licensing agreement?
vi. Offeror: ProCD, Offeree: D
vii. Pay now, terms later approach
viii. Buy software at bestbuy, take shrinkwrap off, see terms, want to return to
bestbuy, bestbuy doesnt like people returning once the srinkwrap is off
ix. KEY: buyer was put on notice that terms were included inside the box bound
by terms if you do what the terms say you have to do to be bound
x. This is not 2-207 or additional terms BECAUSE 2-207 APPLIES ONLY TO
MULTIPLE FORMS, it is about original contract/offer
b. Often times terms of an agreement may not come until after payment
i. Airline tickets
ii. Software
iii. Concert ticketsno recording notice after you buy ticket. Term came after
existence, or it is part of contract?
iv. Perscription drugs.
c. Creates a problem with retail sale of products with warranties + terms of licensing
inside the box
i. This is a message from the manufacturer, not the retail outlet
ii. Should opening the shrink-wrap or clicking I accept after purchase bind
user?
iii. The outside of the box does give warning that terms are inside; does this
make it fair?
1. Cant be bound to terms that are secret; what you are bound to is only
equal to that which you agreed to; additional terms could not be
outrageous
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d. In this case, the VENDOR is the master of the offer [its usually the buyer in a retail
situation]
i. HYPO: Im in a grocery store going down the drink aisle; I pick up a liter of
coke and put it in my shopping cart; as I get further down the aisle I find that
a liter of Pepsi is cheaper so I pick up a liter of Pepsi and put it in my cart; as I
am going back up the aisle to put the liter of coke back on the shelf, it
explodes and injures me
Must find that the seller makes the offer + show that putting coke in
basket is a contract
UCC 2-204 relaxes the common law approach (that requires
explicitness): any manner sufficient to show agreement; even though
one or more terms are left open contract for sale does not necessarily
fail for indefiniteness
Contract can come into existence by virtue of conduct of the parties!
HYPO: pyramid of beer. Price is present, quantity is # of cases in pyramid, quality
is type of beer. There is no promise, Rath says they probably had not made an
offer. ProCD says something different. Rath says putting beer on counter is
promise to pay.
HYPO from old exam: A goes to albertsons. Soft drinks. Each one has price above
it. Take one coke bottle, put it in basket. Go to checkout counter and coke bottle
explodes and injures me. Year and a daydont have tort. So can only recover on
breach of contract. Breach of contract requires offer and acceptance. Is there a
contract from putting coke in basket, or is there no contract bc you have to offer
by putting it at checkout and they have to accept by selling it to you. What if you
go down aisle and see pepsi for lower price and decide you want pepsi and put
coke up. Are you in breach of contract if you put your coke up? Of is there no
contract because store didnt offer and you didnt accept.
HYPO: buy can opener. Inside it says if you use this can opener you agree to pay
$10K. If 2-207 that would be a material alteration and would be thrown out. LOOK
AT PROBLEM 42.
G.
REVOKING A UNILATERAL OFFER
a. GENERAL
i. An offer lives for a reasonable time
ii. *If offeror make an offer that is unilateral, offeror does not have to give the
offeree a reasonable time to decide how they want to act
1. An offer is revocable ANY time prior to acceptance even if the time
given is unreasonably short
2. UCC 2-206 says its possible to make an offer unequivocally unilateral
iii. IRREVOCABILITY can be bought through an OPTION
1. Must be an exchange of $ for a promise to hold an offer as irrevocable
2. The common law does not enforce promises of gifts
iv. Equal Publication Rule
1. If you make an offer via mass media and you dont know who the
offerees are then you can revoke your offer via mass media
a. Have to do this reasonably (i.e. print revocation in the same
section of paper as the offer was printed; run revocation for
same number of days, etc)
34
v.
vi.
vii.
viii.
ix.
x.
2. As the number of offerees increases, the more acceptable the equal

publication method is for revocation even if offerees are known
Partial revocation treated same as full revocation
Revocation of an offer is effective when received; BUT if your revocation is
never received then it is not effective
Sequence is critical to communication.
Three theories of revocability:
1. An offer to a unilateral contract becomes irrevocable at the beginning
of the performance. But actor is not obligated to finish cutting yard, if
he chooses to stop halfway through. Offeror cant back out of deal once
performance has started, but offeree can back out at any time before
he completes performance.
But what if you quit before the last blade, you have conferred benefit
upon the offeror. Quasi contract, may be able to get some payment.
2.
3. Once the offer has begun, we will treat it as bilateral from the
beginning. This would mean you have to finish cutting the lawn.
Contrary to the rule that offeror is in control.
Acceptance can trigger irrevocability
Assuming offer has no option, and the offer has not yet been acceptedany
other ways in which offer can be irrevocable.
1. Time between the beginning and end
b. Two situations:
i. When there is no time between commencement of performance and
completion [instantaneous performance]:
1. Common Law Rule: unilateral offer is revocable any time

before commencement of performance [depending on
extent of preparation]
a. Do not have to give offeree a reasonable time to make a
decision
ii. When there is a lapse of time between commencement of performance and
completion:
a. Lapse is termination of offer, duration is termination of contract
b. Can be stated or unstated
2. Modern Rule: the offer becomes irrevocable when performance has
begun
a. This does not mean that contract comes into existence at the
beginning of performance
b. Acceptance is the completion of the performance
c. Offeree is not obligated to finish the performance though; but
protects him from losing out if the offeror revokes in the middle
of performance [breach]
3. Cutting Edge Rule: if performance has begun in a unilateral contract,
the offer becomes bilateral
35
a. Offeror cannot back out and offeree is obligated to complete the

performance by virtue of implied promise in beginning
performance
b. You will usually get the same result
c. *Bockrath prefers to take the bilateral presumption approach
i. This makes the obligation reciprocal
d. Motel Services v. Central Maine Power Co. [p. 140] (A Modern
Rule case)
i. 2 reasons an offer cannot be accepted
1. The offeree does not know about it..so wasnt
induced by offer
2. The offer was not made to the party trying to
accept it
a. *Otherwise an offeror cannot ever properly
revoke b/c he wouldnt know who the offer
was made to
ii. If the offeror is the one who stops the offeree from
completing performance, the offeror cannot complain
offeror must give offeree the opportunity to perform
iii. CMP outward manifestations of who owner is (Lucy)
iv. In the ordinary case when an offer is uni, theoretically
there is no obligation to notify the offeror that you
will/have performed
v. Turnkeybuilt to completion and just turn over the keys
4. *These two different situations are important to know so you can argue
your client out of his situation
a. If offeror backs out of an irrevocable offer (either in the Modern
Rule or Cutting Edge Rule), then offeror is always in breach
b. The consequences for violating are different when the offeree
backs out depending on which rule applies
i. If its uni + offeree backs out b4 performance is complete,
offeree not in breach
ii. If its bilateral and offeree backs out b4 performance is
complete then offeree is in breach
c. If offeree begins performance, and offeror backs out, the offeree
may consider completing performance unless the only
motivation he had was the payment from the offeror (p. 144
prob. #68)
c. Preparing to perform v. beginning performance
i. Tenuous difference
ii. Preparation for perf that is injurious could make offer irrevocable
1. Buying a custom tool for the job that cannot be returned
2. Lack of fungibility of preparation
3. The more spent the more likely it is beginning performance
4. Use the more likely/less likely analysis
d. Can a reverse unilateral be revoked?
i. Its an act seeking a promiseoffer doesnt come into existence until you do
the act but you cant undo an act
36
e. Petterson v. Pattberg [p. 136] D made the offer that he would reduce Ps
mortgage if P paid in full in cash by May 31, 1924. When P shows up to pay D, D
will not take the money
i. If the offeree has actual knowledge that the offeror has done some act
inconsistent with continuation of the offer this is sufficient for revocation
ii. The promise to take less money, is the promise of consideration of less
money. Quid pro quo.
iii. Unilateral
iv. Is it still revocable once money has been tendered? No.
v. If the offerors cooperation is necessary, then he never made an offer in the
first place power has not been transfered
vi. If a promisor is himself the cause of the failure of performance either of an
obligation due him or a condition upon which his liability depends he cannot
take advantage of the failure
vii. What is the actual act requested? Promise made?
viii. *Here the offeror is not conveying full power to the offeree to make the deal
consummate
ix. *What if the offeror makes his offer conditional? I reserve the right to reject
your acceptance
1. Then there is no transfer of power and theres really no offer
2. How less explicit can this statement be and still be effective?
3. (See problem #69 p. 144)
Problems, p. 112
45. Unilateral, cannot be performed instantaneously irrevocable once
performance has begun. Dont confuse irrevocablitiy with existence of contract. So,
if they try to revoke it and you already built half of it, what do you do? Cant sue for
breach of contract, contract wasnt in existence until completion. Would the railroad
be in breach if they stopped? No, no contract yet cant breach.
46. Petterson. If we have the tender, and we are now stopped by offeror. If offeror is
being stopped by offereree, is there a contract? Power hasnt been transferred.
47. Beginning of performance makes offer irrevocable. When did performance
begin? Beginning v. Preparation. If just preparation, performance has not begun.
Reliance. If you had something custom made, it would be beginning of performance
(reliance).
H. INDIFFERENCE PRINCIPLE
a. UCC 2-206: says any mode of acceptance is ok if the offeror does not explicitly
qualify the offer
i. Offeror can contract out of this by being explicit
ii. Also says that in response to a purchase order 2 modes of acceptance are ok:
37
1. Prompt promise to ship

2. Prompt shipment of conforming or non conforming goods
iii. Shipment of nonconforming goods
1. In common law this would be a counter offer
2. Under 2-206 it is acceptance of the offer (order) while simultaneously a
breach (if the offeror keeps the goods)
a. The buyer still has to pay for the non conforming goods
b. But would also recover the damages he suffered by getting the
wrong goods
c. Buyer is not obligated to keep the nonconforming goods
3. Shipment of non-conforming goods goes back to being a counteroffer
(and not a breach) if seller notifies the buyer (offeror) that the
nonconforming goods are just an accommodation; contract is now on
his terms if buyer accepts the goods
Horton v. Daimler Chrysler
o Was the sending of the $500 the acceptance of the offer?
o Chrysler says acceptance only after full payment
o Horton says tender of $500 was acceptance
o Offer by Chrysler uses the word terms terms of payment
o Acceptance is communication of yes took place at initial $500 payment
o Any manner reasonable under the circumstances will be deemed to be
appropriate
2-206: Acceptance of offer itself
If you can have an acceptance of non conforming goods
Acceptance of what? Acceptance of offer.
Contract is for whatever original offer is for.
Non conforming goods would be an acceptance and a breach of contract
2-606: Acceptance of goods
Acceptance of goods themselves happens when the buyer notifies the seller
he will retain the nonconforming goods in spite of them being non conforming
Whether or not goods are accepted, still a breach
To overcome indifference - Prescribed method is usually overcome by the word only in the
acceptance rules.
Problems, p. 115
48. Sounds unilateral, but modern presumption is bilateral because if you will
paint seeks a promise as compared to if you paint. Bilateral have to
communicate acceptance. Painting was not preformed in the presence of the offeror.
If it was indifferent would we have an acceptance (can be accepted by promise or
act) yes, contract.
49. Words suggest unilateral, but might it be indifferent if it is not prescribed (no
only term)
50. UCC 2206(b). Requested an act, and got a promise. Be careful on final with
where the problem is staged at and if the UCC applies there.
38
51. Original offer = 200,000 blue bottles. If it is a UCC transaction, the mirror image
rule is not required for acceptance. Normally, acceptance is only a yes or no to an
offer, sending of the white bottles would normally be a counter offer --- but, things
are different under UCC. Is the contract for white or blue? Acceptance of the offer,
but offer was for blue. what is contract for? If contract is for blue, what was the
shipment of the white? The shipment of the white bottles is both an
acceptance of the offer and a breach of the contract. If people breach, you
want to sue. When non conforming goods are sent, you can accept or reject. Either
way, there is a breach of contract for lack of blue bottles. If white bottles are
accepted, maybe you accept by act of dominion. Shipment of non conforming goods
is just as much of an acceptance as conforming goods.
52. UCC 2-206(2). No notice of accommodation. (A) You cant cancel an order if
there has already been an offer and an acceptance. But, was there an acceptance?
(B) was not notified of acceptance within a reasonable time, may treat the offer as
having lapsed before acceptance 2-206(2). Ha a reasonable time passed?
Reasonable time v. seasonable time look this up.
HYPO: 2-206(1)(B)Bottles. Offer is to buy the bottles. The response is a box of
hammers, nothing accompanying the hammers to say its an accommodation. An
acceptance of the offer and a breach. 2-606, 2-607. If you take the goods still
have to pay contract price, then go back and sue for breach of contract.
o Suppose sending of the hammers so out of line that no one would think it is
an acceptance. So, 2-206 doesnt apply. So, this would be a counter offer.
What kind of counter offer? Reverse unilateral. The taking of the hammers
would be acceptance by act of dominion.
o If I send you a box of hammers is that a UCC transaction. Does UCC apply
only to offers to buy goods. Or, is it to the sale of goods, regardless of to buy
or sell?
o If you keep the goods and its not an acceptance, its a conversion
o What if they only ship 10, instead of 20 and there is no sign of it just being an
accommodation? Acceptance and breach of contract.
HYPO: offer to buy blue, seller ships white bottles. Contract exists as soon as seller
ships (acceptance). So acceptance and breach at same time. If non conforming
goods are sent, buyer sends letter and says I reject bottles. That is not a rejection of
the offer. So there is a breach against seller of bottles under 2-206. Rejection of
bottles, there is no possibility of 2-607 to apply. Have to accept goods for 2-607 to
apply.
What if white bottles are accepted. Then go to 2-607. Is the first provision of
607, is that inconsistent with buyers ability to sue for breach of contract with
respect to blue bottles. The contract price is what you agreed to pay for blue
bottles. If you take white bottles, have to pay contract price (blue). Then,
after you pay you sue for breach. Cant not pay for bottles, just because he
breached. If you dont want to pay contract price for the white bottles, then
you should return bottles. And, you can still sue after you return the bottles.
Can sue whether you accept bottles or not.
If you say, this is just an accommodation, I think you would like white better
than nonethere is no acceptance here
39
b. Brackenbury v. Hodgkin [p. 144] Mr. + Mrs. B move to Maine to live with and take
care of Mrs. Bs mom at her request; then she tries to kick Mr. + Mrs. B out after a
few months; was there a contract? When did it come into existence?
i. The offer is phrased unilaterally in the letter but the offeror doesnt care what
the mode of acceptance is [Bock says this is the wave of the future for
contracts]
ii. Offer: to move and take care of lady until she dies
iii. Duration was to take care of mom for the rest of her life
c. Consequence for offeror of an indifferent offer
i. Offeror gives offeree the choice of how to accept the offer
ii. Offeror can explicitly state acceptance rules if he wants a certain kind of
contract
d. HYPO: A writes to B: If you will paint my fence next week, I will pay you $200. B
Paints but not in As presence. Is there a contract?
i. Offer was made by letter and offeror is not in the presence of performance
doesnt seem sniff
ii. Bock says this is leaning towards bilateral b/c of the promise now to do it
later + word will
iii. Consider, what would be more/less likely to make the contract come into
existence? [A promise now or performance later?]; what does the offeror
need?
e. HYPO: Grandfather says to granddaughter If you make PhiBetaKappa I will pay you
$10k. Granddaughter promises to get membership. Is there a contract?
i. If offeror is indifferent the granddaughter would want to find that this is a
bilateral offer
ii. Then grandfather cannot revoke the offerprotection is needed b/c it will
take a long time from the offer to the membership
iii. If she doesnt get in/perform, she will be in breach since she made the
promise/acceptance but in this case there is no damage the offeror will suffer
I.
HYPO: Are all prescribed methods authorized?

MODES OF ACCEPTANCE
a. PRESCRIBED
i. A specified method for acceptance ordered by the offeror
ii. Acceptance is NOT binding if it does not follow the prescription
iii. If only is present, it satisfies prescription
iv. Presumption against prescribed methods b/c it is easy to prescribe if offeror
wants to
1. You can accept ONLY by
2. More emphatic examples?
a. Must
b. Must only
3. Less emphatic examples?
a. Shall be accepted by
b. Will be accepted by
c. If it is a close call, explain that on the exam
v. Prescribed method can be something the offeree perceives as unreasonable
40
vi. If offeree uses an unprescribed method of acceptance he has made a counter

offer
vii. A prescribed method is authorized thus binding when sent unless stated
otherwise
b. AUTHORIZED [MAILBOX RULE] **only applies to acceptances, DOES NOT APPLY TO
OFFERS! Doesnt apply to phone, face to face, email or options, offers, or revocation
of offers {offer comes to life when other person receives the offer} {when does
revocation become valid? When it is received} {revocation of offer can trigger
mailbox ruleif mode choosen by offeree to accept offer is authorized, it is binding
when it is sent and revocation would be too late even if revocation was received
before acceptance was received} {if the offer is gone, there is nothing mailbox rule
can be appended to} OPTION IS THE ONLY FORM OF ACCEPTANCE THAT MAILBOX
RULE DOESNT APPLY TO
i. A mode of acceptance is authorized if
1. Old rule: it is equal to or better than the mode the offeror used to
communicate the offer
2. New rule: it is reasonable under the circumstances
a. If offer is sent by pigeon, then acceptance by pigeon is
reasonable. The way in which the offer is sent deems it
reasonable.
b. If you dont use prescribed method, acceptance is not binding at
all
c. If you dont send it in an authorized manner, acceptance is not
binding until it arrive
d. If it is not authorized method of acceptance, it is not binding
upon being sent, so B could send acceptance in un authorized
manner, then decide he doesnt want to acceptif he calls
offeror and revocation is received before un authorized
acceptance there is no contract
ii. If acceptance is sent by an authorized method, it is binding when SENT
regardless of if/when it was received
1. Sent =
a. Putting it in the mailbox, not when it is stamped by the post
office
b. Or when you hand it to someone who is not your agent (i.e. your
employee) to complete delivery, i.e. a messenger service
c. When it is out of your hands!
d. If you can get it back out the mailbox, its probably not binding
yet
iii. If offeror fails to prescribe a mode of acceptance, he has to take mailbox rule
if it applies
iv. If the offeree does not follow a prescription, then the mailbox rule does NOT
apply
1. Then the failed acceptance becomes a new offer
2. Mailbox rule does not apply to offers, only acceptances
3. If the orig offeror remains silent to this acceptance counter offer
does it matter?
a. Only if the parties change their mind about entering into the
contract; otherwise they will just both go with it since they both
wanted the contract anyway
41
b. Consider what the offeror really wants in the end (i.e. a phone
call is just as instantaneous as a fax)
c. Question # 77 p. 152
v. *If it is important that the offeror get notice of beginning of performance,
then the mailbox rule will not apply (question #76 p. 151)
vi. Consider how estoppel could come into play if B mails acceptance to A but
before it gets to A, B faxes a rejection. A has no reason to know about
acceptance until it gets there; in the meantime A may act on reliance on Bs
fax and suffer some injury therefore (question #80, p. 152)
vii. Three possibilities in authorization (THERE IS NOTHING IMPERMISSIBLE
ABOUT USING UNAUTHORIZED METHOD; if you use an unprescribed method
then might be impermissible)
1. The lost acceptance
2. The revokation of the offer
3. Rescinded acceptance
c. UNAUTHORIZED
i. Not better than or equal to/reasonable
ii. Old rule: acceptance sent by unauthorized method is binding if and when
received
iii. New rule: acceptance sent by unauthorized method is binding when sent if
received
iv. Must be received to be binding!!!
v. If received v. when received
1. By just saying if received you fail to specify when the acceptance is
binding
d. To Consider:
i. Are all prescribed methods authorized? Yes
1. Since the offeror is the master of his offer, he has the power to negate
the mailbox rule by framing his offer so as to require actual receipt of
an acceptance as a
precondition to the formation of the contract.
This must be clearly expressed.
ii. If a method is prescribed, is it reasonable?
e. Cantu v. Central Education Agency [p. 119] teacher delivers her letter of
resignation. Not received until two days later. Acceptance is put in the mailbox.
The next day teacher revokes her offer (prior to her receipt of acceptance). This
contact was under 1-Year contract.
i. Revocation is too late b/c the acceptance was binding when sent since
method was authorized
ii. Are all prescibed methods authorized?
iii. Depositedwhen does mailbox rule kick in? Mailbox rule kicks in when it
leaves the offerors hands. Doesnt matter when it is picked up from mailman.
But what if Bockrath gives it to student worker? Does mailbox rule kick it
when he gives it to student or when student gives it to post office? What if
even when it is at campus post office he can still go get letter, so technically
still in his control?
iv. What is a reasonable acceptance?
1. Here mailing acceptance was ok even though offer was hand delivered
b/c the teacher had indicated that she wanted her checks mailed to
her new distant address
42
f.
2. Has to be properly stamped and adress, can still be binding, BUT not
until it is received (rather than when it is sent). If you give your adress
with zip code 70116, just because the other four numbers are missing,
doesnt mean it is imporper. No one knows those numbers.
Fujimoto v. Rio Grande Pickle Co. [p. 116] employees signed but did not return a
profit sharing agreement to their boss; was the mode of acceptance really
prescribed?
i. Presumption against prescribed methods if you cant tell
ii. For prescribed methodhas to communicate the idea of only
iii. Pickle Co. made an oral offer, employees said they wanted it in writing. The
oral offer was rejected.
iv. Prescribed method: offeror says you must accept this offer only by doing X.
Can require acceptance any method. If it is prescribed, it does not have to be
reasonable. Offeree has no discretion of a prescribed method. If offeree does
not accept by the prescribed method, does Y instead of Xthis is a
counter offer.
v. Mode of acceptance not prescribed, so acceptable mode of acceptance is of a
reasonable man under similar circumstances
vi. Acceptance can be found by other means
1. The offeror ultimately wanted to induce the employees to keep
working, they did = communication of an affirmative = PROMISSORY
ACT
vii. Memorialization problem? Show the co. partially performed so they accepted
the employees acceptance
Mailbox rule: only has relevance in 3 instances. Does not apply to revocation of offer. Only
applies to when things become effective.
1. ACCEPTANCE SENT BEFORE REVOCATION RECEIVED. B sends offer and A decides
to accepts, mails acceptance. Prior to B receiving acceptance but after A sends
acceptance of letter, B calls A to revoke offer. Maibox does not apply to revocation,
revocation is valid at the time it is communicated. Mode selected by the offeree is
authorizedtriggers mailbox rule. If an authorized method was used, acceptance
was binding when it was sent. If you send by mail (not authorized form of
acceptance) and then receive revocation of offer by phone (before he received
acceptance) there is no contract. If B says he sends something in the mail, but A
never gets it. As first thought will be that B lied. Contract exists when it is sent,
doesnt matter that A doesnt get it. Also, if B sends it, then changes his mind..he
cant take back his acceptancethere is already a contract. If you use an
unauthorized method, acceptance is fine, just a matter of when acceptance
becomes binding.
43
Questions p. 121
o 53. You can accept this offer only by signing your name on the line
provided below my signature. Y sends a letter of acceptance. Contract?
Does it matter if letter was ever received?
Nofor acceptance it just needs to be sent
If it was a counteroffer it would need to be received in
order to be considered
o 54. Seller made buyer a letter offering to sell certain goods seller was
There is a prescribed method (use of the word only)
What if he had signed it but put it in a drawer?
ready to purchase from third party. Letter says Please reply by fax at once
so I can male a deposit and close the deal. Buy called seller and accepted
over phone. Contract?
Purchasing from 3rd
issues from earlier
Goods mentionedUCC
Less emphatic does not necessarily mean it isnt prescribed
Please reply
Leslie Ruleall prescribed methods are authorized
party sounds like contractor/subcontractor
44
Not sure there is prescription, so assumption is that it isnt

DOES NOT mean methods that are not prescribed arent
authorized
o 55. A made offer This offer shall be accepted by signing in the
Take the fork in the road for shall being so close to only
o 56. A offers by mail to sell car to B. B immediately accepted by mail,
In this case, telephone call would be authorized but it doesnt
matter because it got there in a timely manner
YES contract
appropriate place and returning it to me. B called A and said that offer
was accepted. Contract?
A MIGHT USE AN ESTOPPEL TO STOP B FOR RELYING ON MAILBOX RULE
How is this different from 54?
Its not definite that shall is prescribed, so assumption that there
is no prescribed method applies
changes his mind and sends rejection by fax. Fax is received before
acceptance.
A sues B for breach of contract. Result?
Contract came into existence when acceptance was
dispatched
Doesnt matter if fax was authorized or got there; mailbox
rule doesnt apply to revocations
Suppose A sold car to B once receiving rejection but before
acceptance. B sues A for breach; what result?
Estoppel
When seller got rejection by fax, they didnt know about
45
the acceptance
Perfectly plausible that the reason they sold the car to C is
because they were mislead
Can be protected from mailbox rule by stating in offer its
not binding unless and until received
o ConsequenceDoes give offeree more time to
change his mind/take back offer
o 57. A calls B and makes offer. A in NY and B in NJ. B speaks words of
acceptance but A does not hear because of fault of Telephone Company.
Contract?
Does mailbox rule apply?
Face to face communication so mailbox rule doesnt apply
Telephone more similar to face to face than written
communication
o 58. A made offer to B by mail. B sent letter of acceptance back and it was
lost and never received. If As offer state Your acceptance is effective
when sent
If it didnt say when sent, would there be a difference? NO.
Mailbox rulegoes into effect when dispatched
o 59. A makes offer to B to be accepted by mail or messenger, and B sends
an acceptance back by his own employee. When does contract arise?
Would it be different when given to private messenger service?
MISTAKE IN TRANSMISSION
60. Offeree should have known at time of error (market price was $2.30 per box,
telegraph company marked $1.60)
46
o No contract (Buy did or should have known it was an error)

o What if telegraph company had marked it at $3.60 and it was accepted?
Answer may be different
Doesnt harm seller, buyer still getting what he wanted
61. A write offer to B and addresses/stamps, but changes his mind and
accidentally deposits it in the mail. It is delivered and B accepts
o B received offer presuming that the offeror intended to make the offer
Negligently put into mail, but objective theory still applies
o Would the result be different if A was sleepwalking when he sent the
offer?
What if it was a stolen offer/someone put your name on an offer?
o Bockraths theory: Objective theory is true if actions of offeror are
intentional or negligent, but not otherwise
Was the sleepwalking negligent? If you have history of
If you didnt know about it negligence probably wont apply
sleepwalking and know about it, might be negligence
62. count from time it was received. If offeree knew or should of known of delay,
clock starts to tick when?
63. could have said, at market price. Telegraph is instant communication. Fixed
price, rapid fluctuaction, near end of business hours, acceptance sent the next day.
Rapid fluctuation hint at shorter reasonable time. Is next day reasonable time?
What if it was at market price and price was fluctuating longer reasonable time.
What about when communication is crossing international date line?
g. Problem #74
i. Would it be fair to say that P could revoke the offer if D just wrote back saying
he would ship and P needed the items sooner than D could provide?? No; he
should have prescribed this
ii. UCC 2-206 says prompt promise to ship is effective
47
When does an offer become irrevocable?

J. MISTAKE IN TRANSMISSION
a. RULE: an offer is binding as it is sent when it is sent unless the offeree had reason to
know of offerors error
i. There are cases where the error is so great as to put the offeree on notice of
the error
b. HYPO: what if a letter/message is accidentally transmitted/mailed (theres no error
in the offer per se, but the offeree changed his mind about actually sending it)
i. From the offerees perspective there is no difference
ii. So what would happen?????
c. HYPO: what if the price is transmitted at a higher price than the offeror intended?
i. Contract is still binding unless the accepted price is so high that no
reasonable person in the position of the offeree could be warranted in
believing that an offer existed [exam + pen sale emergency hypo]
1. What if the offeree finds out that there was a mistake in transmission
later? Is he held to what he paid? If he paid, thats too bad
d. WATCH OUT FOR THE ERROR WHERE THE OFFERREE ACCEPTS A HIGHER PRICE
i. If the offerree accepts a higher price then it changes the mistake in
transmission application
1. Everyone is happy; why did offerree accept, if he didnt want it to be
binding?
e. If you negligently send an offer (sleepwalking to the post office), then you are
bound.
K. TERMINATION OF REVOCABLE OFFERS
a. DURATION how long a contract lives after the offer and acceptance come
together
b. What can kill an offer?
i. Revocation prior to acceptance
ii. *Death of an offeror terminates the offer regardless of offerees knowledge
of the death
1. Contract is still good if death of offeror comes after acceptance of offer,
unless it is impossible for the contract to the fulfilled after death (for
example, personal service by the offeror--- impossibility doctrine)
2. If offeror dies while offer is still revocable, the offer dies regardless of
knowledge of offeree.
3. Frustration of purpose (death of offeror)offeror (A) wants house
painted, B accepts, then A dies. B can still paint house, but A cant
pay/doesnt need house painted anymore.
iii. *Supervening insanity of an offeror terminates the offer if the offeree has
knowledge of the supervening insanity
1. If offeror was insane when he made the offer, it is already invalid;
offeror must have capacity (competency) to make an offer
2. Swift v. Smigel [p. 153] takes the minority view saying that
knowledge on the part of the offeree is important to revocation
3. Can consider both majority + minority views on the exam
4. Not supervening insanity unless there is a court order
iv. Late acceptance (lapse)
1. If offeree accepts after this period it is considered a counter offer
v. Supervening illegality
1. offer is made and accepted, then stuff becomes illegal
48
vi. Indirect revocations

1. An offer can be revoked by knowledge that an offeree gets from a
reliable third party source
2. If an offeror has multiple objects and he sells one of them, the offer is
not revoked indirectly
vii. Impossibility
1. If a contract comes into existence but its performance becomes
impossible after that, the obligation is negated
viii. LAPSE make sure you separate duration and lapse in your head
1. Duration = the lifespan of the contract
a. Filled in the gap with either employment or reasonable time
(Haines/NY water case)
2. LAPSE IS THE LIFESPAN OF THE OFFER ITSELF
3. STATED
a. Sometimes it is stated explicitly
b. Any stated time period is fine no matter how unreasonable it
may seem to offeree
c. Offeror can superimpose the starting point requirement on top of
the mailbox rule
d. Acceptance made after this time is a counter offer
e. Fractional days are not counted
f. Count the days from time it is received (p.127, #62)
4. UNSTATED
a. Offer lapses after the passage of a REASONABLE TIME, i.e.
b. Determined by the reasons the parties entered into the contract
i. Once a market price starts to fluctuate
ii. Once the purpose of the offer has disappeared/passed
(i.e. reward offer for capture of a criminal, once statute of
limitations has passed, offer has lapsed)
iii. Once the person in power of a group has changed (i.e. the
government)
iv. Subject to prior sale
v. Supervening illegality (EPA bans the sale of certain
chemicals before offer is accepted)
vi. Supervening arson (prob # 96 p. 159)
c. Hard to determine, thats why we litigate!
d. But! If neither party knows when exactly the offer lapses, then
neither of them would know if it was latebut if they both still
want to be bound, then theres probably no issue
e. In a face to face offer, if the offeree leaves without saying
anything to accept the offer, the offer has lapsed when he
leaves; telephonic communications treated the same
f. In a unilateral offer lapse rule works differently b/c you cannot
accept by saying yes, only by doing the act
5. HYPO: offeror sends a letter saying you have X# of days to respond
with your acceptance
a. When does the lapse period start? Depends on when the letter
was dated? Sent? Received?
b. The burden is on the offeror for the non-explicit start date or
acceptance date
49
c. RULE: the lapse period starts when the offer is received unless
there is some indication that the offeree knows or should have
known the offer was very delayed
i. Then the lapse period starts on the day the offer was
likely to have arrived
ii. Look for dates in the problems!!
Problems, p. 128
62. You have a stated lapse period. You start the offer from the day that it
was received. It was received in a timely manner. If the offer was delayed,
then he should know that the letter was dated on the 29 th and it did get there
for 4 days, we start to court from when it was received.
63. You do NOT have a stated lapse period. So the lapse is a reasonable time.
Case this came from said that he should have been responded immediately
64. purpose was to prevent the reoccurrence of an act (fire). Offer could
lapse when there are no more fires. City of Boston posted about reward.
65. purpose was for arrest of particular person (act already done). Offer did
not lapse because this guy was still capable of being punished. If he hadnt
been caught, when would offer lapse? When the statute of limitations expires.
66. take rebroadcast out for a moment. B says to R I will sell you my car for
$1000then in one hour R goes to Bs office and says I will accept your offer.
offer probably expired. Think about it over night, then accept. Offer
expired? Is lapse rule different in face to face communication as opposed to
written communication. If face to face, and after offer R doesnt say anything
and leave, B would probably think she doesnt want car. FACE TO FACE
OFFERS TYPICALLY LAPSE WHEN PARTIES ARE NO LONGER FACE TO FACE. If
you call this showstated lapse period? Then have to call during the show is
the lapse period. But it may not bebecause the SAME show rebroadcasted.
What if he didnt say that?..What would the lapse period be? Should face to
face rule be applied? But this is the kind of thing that would have to be
researched. When are they no longer metaphorically face to faceat the end
of the show. Court decided: lapse period is at end of show. Even if he
hadnt stated lapse period, apply face to face rule and lapse period
would end at end of show.
67. Mailbox rule? Authorized method? If it was late, its not authorized. Issue:
how do we treat a late acceptance? If it is really late, we treat it as a counter
offer. But, this was w/in a plausibly reasonable time. Offeror could waive the
lateness but then does offeror have to notify offeree of his waivor?
68. sent offer to a number of prospective buyers. Offeree shouldnt be
warranted in believing offeror intends to be bound when only having one
piece of property (Joshua Tree property/form letter case). Can be bound to
both A and B at the same time, but will only be able to satisfy one contract.
What is significance of subject to prior sale language in regards to B? is it a
stated lapse period, this offer lapses when I sell the property to somene
else Bockrath thinks this is true.
69. Supervening: offer made first then it becomes illegal then there is
acceptance. Does it turn on notice of offeree or does offer turn regardless of
notification? Notice doesnt matter. Like supervening death (I think). What if
50
offer to buy and sell..then becomes illegalthis would be another doctrine.

Supervening happens between offer and acceptance.
70. Revocations are not binding until they are received. Mailbox rule does not
apply to revocations (they are not acceptance). Issue: we have not decided.
Might not want to go through is this revocation? How emphatic does offer
have to be? I will sell you my house. I might not want to go through with
it no offer, revoked.
71. Reward offer posted and taken down, old test question. Understand
where/what offer was. Has it been accepted before revocation? There was an
offer. Bilateral or unilateral? If unilateral, response by B is not acceptance.
When you publish an amendment of the offer, it acts as a partial revocation.
Issue: was partial revocation binding on the offeree? Revocations are binding
when they are received. But, B didnt see it. Suppose there was no
notification to offeror, would there have been any way to notify everyone who
saw original offer? Would be virtually impossible to notify everyone of
revocation, because dont know who saw original offer. Equal publicity rule:
there has to be equal publicityif an offer is made throught media likely to
reach lots of people and offeror has no way of knowing who offerees are..then
revocation is adequate if it is published in the same way the offer was made.
This case: offer was in newspaper, partial revocation: publish notice.
Assuming he published in the same newspaper, for same amount of time
revocation would be adequate regardless of if offeree saw revocation. But,
when B sent in order form, A knows who offeree is. Equal publicity RULE
(communicate the revocation in as equal a way as they made the offer) is
based on not knowing who saw the offer, possible offerees. Issue: had
beginning of performance commenced? The more of the entry forms that he
got, the less likely it is that he would lose opportunity to use equal publicity
rule.
Reward is posted at post office on Monday, on Tuesday post is gone. Is
this revoked?
72. So long as information is true and received from a reliable source
revocation is valid. This is indirect revocation. Indirect revocation has two
components to it.
73. (A) Assuming it is from a reliable source. Full time. If it was two part time
jobs you could work in both
(B) Not an indirect revocation. Because B could want to hire 2 people.
L. COUNTER OFFERS + BATTLE OF THE FORMS + UCC 2-207

a. Common law rule: the slightest difference between an acceptance and an offer
turns the acceptance into a counteroffer (aka mirror image rule) trend is to
uphold acceptances that vary from offers in only immaterial details
b. UCC 2-207 [sale of goods only!]
i. Negates the mirror image rule
ii. Only applies when the 1) dickard terms are the same and 2) the acceptance
has added additional terms
iii. Presents situations where an acceptance can include additional and different
terms without becoming a counteroffer
51
iv. Non-dickard-terms (the fine print stuff) can be different mirror image wont
apply. Need mirror image for dickard terms
v. How can you have a contract when you havent agreed to all terms? It is not
required under 2-207.
vi. 2-207(1)- only deals with if offer and acceptance are there. If offer and
acceptance are present then go to 2-207(2) to decide if dickard terms are
included in the contract. Dont go to 2-207(2) if you dont have a contract
under 2-207(1).
vii. HYPO: offer: dickard terms A, B, C. acceptance: definite language,
seasonable (has not lapsed; duration is in offer, but lapse is in
acceptance) expression of acceptance. Agreement of dickard terms A, B,
C. acceptance also include term E for arbitration rules. Under common law it
violated mirror image rule. If it is a 2-207 problem it operates as an
acceptance even though it states terms different from the offer. Go to 2207(2) to decide if E is included. If E is very important to acceptancecan
say acceptance is expressly conditional on assent to additional termthen
this is not an acceptance, no contract yet. If this is not said, then go to 2207(2) to decide if E is part of the contractbut there IS ALREADY A
CONTRACT. Offeror has not yet assented to E.
viii. Terms in text
1. Definite = promissory language
2. Seasonable = agreed upon or reasonable time; incorporates lapse
principle
3. Expression of acceptance or a written confirmation = means that one
form is enough (ProCD is wrong!)
4. Different terms = addressed by both parties
5. Additional terms = addressed by one party
ix. Part (1)
1. if the first communication is not an offer, do not apply 2-207!!
2. if you get assent then you have a contract in part 1, if no assent then
no contract under numer 1
3. An acceptance with additional and different terms can be an
acceptance
a. Unless that acceptance explicitly states that the offeror must
assent to the additional or different terms the offeree includes in
acceptance
i. The offeree is insisting that the additional terms be part of
the contract
b. Then the acceptance is back to being a common law counter
offer
c. If theres no assent or offeror is silent, theres no contract go
to Part (3)
4. So a contract can be formed in light of an acceptance with
additional/diff terms when the acceptance is definite + seasonable
a. ***EXCEPTION when the price is altered in the acceptance,
one could take the position that this is not a definite and
seasonable acceptance!!
b. PRICE change is usually always a material alteration
5. If youre unsure of the terms of the contract go to Part (2); if you
know what the terms are, stop here!
52
6. ADDITIONAL TERM = when the offer says nothing about a term, but the
acceptance does
7. DIFFERENT TERM = when offer and acceptance both say something
about the term but they disagree on the details; can sometimes be the
same as an additional term
8. *Bock says it doesnt really matter if you call it an additional term or a
different term
9. *At confirmation state you cannot take out terms originally agreed
upon
a. Can only change a contract that is already in existence if both
parties agree to it
b. At the confirmation state, changing the price is a breach
c. LOOK OUT FOR WORD CONFIRMATION (or an invoice or form that
comes after another agreement)
10.ASSENT cannot be implied or given by silence!
x. Part (2) on the final, take the trident in the road and talk about the 3
different ways to handle additional terms, which includes the knockout rule.
1. You have a contract from Part (1), now we need to determine whats in
the contract
a. If you know what the terms are, dont worry about Part (2)
2. Any additional/different terms are not automatically part of the
contract that was formed in Part (1)
3. They automatically become part of the contract when both of the
parties are merchants
a. Except when
i. The offer explicitly says that the contract is limited to the
terms of the original offer; then the additional different
terms do NOT become part of the contract
1. The offeror is trying to protect himself this way
2. This extends to additional/different non-material
terms too
3. not rejecting the whole deal, just the proposals;
proposal is just an additional offer
ii. The additional different terms materially alter the contract
1. I.e. a deal breaker; a surprise
2. Usually price
iii. The offeror objects to them within a reasonable time
1. Requires notice of objection
2. if you are silent then you imply acceptance b/c you
had the chance to reject with notice
4. The additional/different terms do not automatically become part of the
contract when the parties are not both merchants
a. In this case, the terms are PROPOSALS (additional offers) only
the original offeror can decide whether to accept them or not
without destroying the contract
b. Acceptance of PROPOSALS can be made by silence or act of
dominion, etc.
c. If theyre not both merchants, they still become PROPOSALS
5. Different Terms:
53
a. Knock out rule: dont impose different terms of either

party
b. The different terms are a proposal, which have to be
accepted by the party
c. Additional and different mean the same thing: The different
terms probably materially alter the contract, so they
usually will not become part of the contract
Ardente v. HoranMirror Image
No signature on original offer
Mirror image rule is that response to offer should be the
exact same as the offer
Response to offer had additional information about
furniture and fixtures not mirror image of offer
I wish it would contain the furniture does not
violate mirror image rule
Suggestions do no violate mirror image rule
D said no to inclusion of fixtures and furniture
P claims his response w/ deposit check was an acceptance
of the offer
What if the original offer by seller was not an offer
because it was not signed
No matter which communication you decide was the
offer does not change anything
If buyers deposit check and letter to include furniture
and fixtures was the offer the seller would have
said no
Furniture is quality term dickard term
HYPO: Unique car. For sale $20K. Offerree says I accept. But,
there wasnt an offer yet. What if there is no price. UCC can fill in
a reasonable term. Dont apply 2-207 unless there is something
additional or different to the acceptance.
o Suppose seller say I will sell car for $20K.
Offeree says I accept if you include the child
seat. 2-207? Child seat dickard or not dickard
term? Seller responds: No. Buyer sues for both
the car and the car seat. This is Ardente. Is
there a contract for both car and car seat? No,
it was a counter offer. What if buyer sues for
just the car? Is car seat part of quality of the
car?
o Supposeseller says I will sell car for $20K.
Buyer says I accept if you include the extended
54
o
o
o
o
warranty. Assume this is a non dickard term.

Seller says no. Buyer sues for car and warranty.
Contract between the parties? Common law
answer would be no. Definite acceptance? Yes.
Seasonable? Yes, as far as we know.
Acceptance/Contract? Yes. Stuff at bottom of
form (warranty, etc) is considered non dickard.
Not 2-207 if he says: I accept if you throw in a
bass boat.
Think back to form: you have the order form
where you fill in quantity, quality, etc. If it is
something that will/can be filled out on an
order form on an individual basis it is a
dickard term. The stuff you actually fill in on
the form is dickard. Items stated at the bottom
(warranty, etc) is non dickard.
Key to 2-207: is there a contract at all
Unless the acceptance is expressly made
conditional My acceptance is expressly
conditional on your assent to this additional
term. Then cant apply 2-207.
What if the buyer sends acceptance with
additional terms, but doesnt include language
of expressly conditional. Buyer then changes
his mind says arbitration clause is a must.
There is an acceptance since expressly
conditional wasnt included. Can seller turn
around and sue buyer? Fungible?
If it is an expressly conditional term not an
acceptance under 2-207 this is a counter
offer
Someone accepts but says expressly conditional to additional

term no acceptance no contract dont go to 2-207(2)
Merchant is typically at wholesale level, not retail letter. Cant
just own a grocery store. Have to be a merchant acting as a
merchant. BOTH PARTIES HAVE TO BE MERCHANTS, ACTING AS
MERCHANTS.
Phone conversation: dickered terms (a, b, c). answer is yes
contract w/ these terms. But an added term of (d) --non dickered
is included in the confirmation. Last phrase of 2-207(1) has NO
application to the confirmation phrase. How do you determine if
55
D is part of the deal 2-207(2). Does the language between

merchants include different terms?
2-207(1)
o acceptance has to be seasonable- w/in the stated period,
or if there is none w/in a reasonable time
seasonability deals w/ lapse
o confirmation (of a deal already made) has to be
reasonable.
Confirmation normally also contains the non dickered
terms
Should knock out be applied to confirmation? No,
knockout is about 2 things that arent yet agreed
upon. Confirmation has nothing to knock out.
Acceptance has something to knock out, the terms in
the offer. In confirmation, if knock out applied, it
would be allowing change in an already existing
agreement. TREAT CHANGE OF TERMS IN
CONFIRMATION AS A PROPOSAL.
Different term v. additional term
o Arbitration v. no arbitration
o Between non merchantsdifferent and additional terms
are proposals
Material Alteration
o Dorton says question of fact. Many jurisdictions say
arbitration is a material alteration as a question of law.
o If it wouldnt be a surprise in the custom of the tradenot
a material alteration???
2-207(2)(c)
o Offeror says X, Offeree says no X
o Becomes part of contract unless notification of objection to
them has already been given
o If you want to include X, it means you have objected to no
X
o Last shot principle does not applywhy? When does last
shot apply?
o If you put an additional term in confirmation (non material,
non dickered termso additional, not different). If its not
material, then doesnt become part of the contract?? It will
be part of the deal (if its non material) UNLESS YOU SAY
NO. notification of objection must be given w/in a
reasonable time after notice of them is received. Different
56
terms cant become part of the contract (when in

confirmation) unless offeror says yes.
o Can have a material alteration that is not dickered. Material
alteration would be one that would be a surprise.
o In industry where arbitration is the norm (custom of trade).
Deal wont fail because we didnt agree on arbitration (non
dickered term). Adding arbitration is not a material
alteration wouldnt be a surprise because it is always
done.
o I will sell you A, B, C. J says yes, but w/ arbitration.
Becomes part of deal under 2-207(2) unless it meets one of
the exceptions.
KNOCK OUT RULE- Raths favoritew/ additional terms in 2207(2).
o Neither terms applies if A wants X, and B wants no X
o Warranty type 1, warranty type 2 neither warranty
becomes part of the deal
o If I say X and You say something different, I have already
given you notice to that something different. So your
addition doesnt apply.
o Doesnt mean there is a total void. A says warranty type A,
B says warranty type B knock each other out. But doesnt
mean there is no warranty. Jus no warranty of type A and B.
So then it might be the UCC warranty. Sometimes it might
be favorable to one side, for examply w/ an arbitration
clause.
o Cant use a knock out rule on a different term in a
confirmation
o Puts everyone on the same playing field, no one has
anything imposed on them that they have not agreed to
Acceptance under 2-207 2-207(2)
o Between merchants (both parties have to be merchants
and acting as merchants)? First sentence only applies to
merchants?
o Non merchants?
o Does it apply to different terms
LAST SHOT PRINCIPLE- does not apply to 2-207Dont use
anymore?
The last terms put on the table before the acceptance are
the terms that control the last shot are the terms that
control
But if it is a conditional acceptance/counter offer??, the
condition/counter is the last shot
57
Can offeree reinstitute the last shot rule so that his

additions/proposals come into contract if contract is
accepted? Then you expressly state that acceptance is
expressly conditional on assent to the additional terms. If
these terms are not accepted no contract.
2-207(3)Diamond-- When there is no contract under 2-207(1), .
o 2-207(3) is an alternative to 2-207(1) & (2)
o BOTH parties think there (look at conduct) is a
contract establishes a contract
o Terms on which the writings of the parties agree
together w/ supplementary terms (fill gaps) in UCC
xi. Part (3)
1. Take original offer, and porported acceptancewhat they agreed to is
part of the contract. What they didnt agree to is not part of the
contract. Unless they are supplemental terms.
2. Accepting the terms is good enough to trigger 3, but it is not good
enough to signal assent to the additional terms.
3. If in Part (1) you cannot tell if there is a contract or not, look to these
provisions in Part (3)
4. Arises when the writings of the parties do not officially establish a
contract b/c
a. Acceptance was not seasonable
b. Acceptance was not definite
5. It must pretty clear from the conduct of the parties that they want to
enter into a contract with each other
6. So we will fudge it and say theres a contract
7. The terms of this fuzzy contract will be:
a. The terms that the parties have agreed upon in their writings
b. Additional and different terms will be included as per Part (2)
8. Diamond Fruit Growers v. Krack [p. 169] Third party Metal Matic said
that their acceptance of Kracks purchase order was made expressly
conditional on Kracks assent to the terms of Metal Matics
acknowledgment form. Contract formation + terms are uncertain
i. If acceptance of pipe had been the acceptance of the
terms, then the last shot rule would be in place. LAST
SHOT PRINICPLE HAS BEEN ERODED BY 2-207. They didnt
assent to the additional term just because they took the
goods/performed. This takes the last shot rule back out,
and puts it where is belongs?? Where does it belong?
b. What constitutes conduct of the parties which will recognize
existence of a contract in Part (3)
i. If the parties perform, there is a contract
c. What are the terms of the contract when it comes into existence
by virtue of performance rather than by written agreement?
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i. Look to the writings of the parties and see what terms are
agreed upon
ii. Anything disagreed upon will fall out and gap will be filled
by UCC
iii. *The fact that the parties discussed the terms of their
contract after exchange of forms does not put the issue to
rest
d. What constitutes assent?
i. Last shot rule does not apply to 2-207
ii. Says that the seller (Metal Matic) here was most
responsible for the ambiguity b/c it inserted a term in its
form that requires assent to additional terms but did not
enforce that requirement!
iii. Acceptance of the goods is not assent to the terms; it is
acceptance of the terms
iv. Can silence = assent when acceptance is made
expressly conditional?
xii. Hill v. Gateway [p. 175] the customers ordered a computer from the
suppliers. Dissatisfied with its performance, they filed an action against the
suppliers, which alleged various claims.
1. Court ultimately enforces arbitration clause
2. Furthermore, the court stated that a contract did not have to be read in
order for it to become effective and that the terms inside a box of
software were binding on a consumer who subsequently used it.
3. Remember ProCD acceptance = customer using the product
xiii. Dorton v. Collins the language used was not sufficient to satisfy expressly
made conditional on assent to the additional or different terms. Therefore,
the contract was upheld under subsection 1. Since the parties didnt agree to
the material term of arbitration, that term was not part of the f under
subsection 2(b).
1. Test for material alteration would it have been a surprise for this
term to be added, or was it not important enough to be a surprise?
2. If contract was formed over the phone it is confirmation problem, if not
over the phone it is an acceptance problem
3. subject to not expressly conditional on assent. Contract under 2207(1)? Yes. What terms apply? 2-207(2). Treated as proposals
unless they are merchants. W/ merchants they are treated as
acceptance unless material alteration
xiv. Klocek v. Gateway In ProCD and Hill Judge Easterbrook asserts that 2-207
does not apply when there is one or no form (b/c then it is not a battle of the
FORMS)bock doesnt buy into this, nor does this judge. Argue whichever
side works for your client ProCD/Hill or Klocekon exam work from bottom
up. Start in terms of results, decide what result is appropriate and then that
will take you to the correct path.
1. Money often exchanged before terms given [airplane tickets, concert
tickets, etc.]
2. *In typical consumer transactions, the purchaser is the offeror, and
the vendor is the offeree [in contrast to ProCD which says the vendor
is the master of the offer]
59
3. ProCD- contract came into existence after terms were communicated

(using the product)
4. Klocek says buyer makes offer. A makes offer to buy computer, B sends
computer w/arbitration clause inside. In box, you would have to say my
acceptance is expressly condidtional on your agreement to additional
terms. But, it wasnt expressly conditional there is a contract. What
happens to additional terms? Its a proposal. Parties arent merchants.
So, it becomes part of contract only if it is assented to.
5. Here you apply 2-207 to the acceptant?
6. ProCD: easter says not 2-207, only one form, vendor is master of offer
Rath doesnt like. notice of additional terms on box that they were in
box. If given notice and opportunity to return this gives rise to
contract. But, if it were to pay $10Kit would be unreasonable. Divide
into 2 contracts:
7. Hill: credit card phone order. Box says can return in 30 days and has
arbitration clause. Knew about terms, not because there was notice on
box but because there were in Gateway ads.
c. When does a failed counter offer kill the original offer?
i. When an offeror says no to the counter offer
ii. Cannot reduce price = willingness to bargain, not dead
iii. An inquiry by the offeree about the offer does not kill offer
iv. Im keeping your offer under advisement does not kill offer
v. *Acceptance does not have to be enthusiastic to count
d. Conditional acceptance = counter offer
e. #105 p. 186 Prompt acknowledgement must be made of receipt of this letter
[as part of acceptance]
i. Is this really a definite and seasonable acceptance? If not, its a counter offer
f. #106 p. 186 silence assent; BUT they responded regarding other terms which
the court found to be B accepting Ss limited warranty terms
Problems on p. 143
74. a. OFFERS TO SELL 2-205. Immediately is w/in 30 days. A conter offer
kills the original offer. Saying no also kills the original offer. The acceptance
w/in 30 days is actually an offer. With an option, the rejection doesnt kill the
offerif it rejected the offer w/in the option/days paid forthe offeree would
not get what they paid for.
b. When he says cannot reduce price, is keeping the offer alive. Re-animating
what the original offer is
c. a counter inquiry(no promissory language) does not terminate the offer.
Pay attention to punctuation.
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d. hybrid. Does that first part, Ill give you $4800. If this were standing alone
it would terminate the offer. B accepts what? Offer at the $5000. Is there
acceptance? What terminates offer? It is rejection. Counter offer terminates
offer because it is a rejection. This counter offer does not reject the original
offer.
e. this is acceptance, doesnt matter about your insistance
75. SINCE THIS IS REAL ESTATE, START WITH MIRROR IMAGE RULE. If that which
follows the if is implicit in the deal to begin withthen if does not kill the
deal. If I say I will sell you my house, it means I have good title to it. If I
dont have good title to it, I am in breach (seller).
76. letter: suggested possibility to modify lease. Is it enough to negate? Court
said no. HRC is not seller, the fact that you are discussing offer w/someone else
is not enough to negate.
77. this is in acceptance. Normally offeree in bilateral contractprompt
acknowledgement is external to contract. Under UCC it might be diff. does
prompt ackknowledgement make it expressly conditional on assent? If its
not expressly conditional on assent..contract under 2-207(1)? Yes. 2-207(2).
If between merchants it becomes part of contract unless 1 of 3 things happen.
1 and 3 didnt happen. So becomes part of contract unless there is a material
alteration. Becomes part of the contract, but not doing it isnt a material
breach anyway.
78. What if warranty terms S set forth were not part of the deal? Was S
response expressly conditional on assent to additional terms? Yes. So look for
acceptance of the expressly conditional on assent. Do we have this? No --> 2203(3)warranty terms in code (rath says this is mechanical). BUT, this is a
matter of agreement to the parties. They continued to negotiate. Can you
find an agreement between them on Ss warranty terms? B requested changed
in payment terms, what did he do to change in warranty terms requested by S?
court says S warranty terms became part of deal because continued
negotiation shows they agreed and warranty terms became part of contract. B
never said no to S termshe said yes to something else.
79. a. confirmation that come later are confirmations of a previous written
agreement that were incomplete. D is an additional term. Additional terms
becomes part of contract unless one of three things are present.
b. D and not D are both additional terms to the agreement previously reached.
Do they become part of the contract? No 2-207(2)(c) each one has already
objected to the other so they dont become part of the deal
80. invoice is confirmation of deal they had already come to. If it is a
confirmation, is it a material alteration? Between merchants it becomes a deal
unless it is material alteration (or other two things). Several thousand dollars
higher could be a material alteration. If acceptance included higher price it is
counter offer because it is a dickard term. Because material alteration it does
not become part of deal. Did buyer accept invoice price by failing to say no and
accepting the goods? Rath says question of fact.
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V. OPTIONS
A. Avoid termination of offers
a. Law enforces bargains, not gifts of promises; an offer is revocable until acceptance
b. An option is payment for a promise to hold contract open; cant swear on a stack of
bibles, must have consideration
c. Once an option is purchased it must be exercised if offeree decides he wants to
accept the offer
d. Consideration for an option for a lease is usually built into the rent
e. Late exercise of an option = counteroffer
f. MAILBOX RULE DOES NOT APPLY TO EXERCISING OPTIONS
i. You havent paid for extra days after option runs out and before acceptance
arrives
ii. Offeror could contract into the mailbox rule
iii. Exercise of option binding WHEN RECEIVED
B. Beall v. Beall [p. 197] option unsupported by consideration was no longer irrevocable
but became a mere offer to sell which the optionor could withdraw at any time before
acceptance ***Consideration often comes up in the context of family and gifts!!!!!!****
a. Alleged contract to sell a farmNo UCC, common law rule
i. Bought a farm from cousin, buyer agreed to let cousin continue to farm
property, the buyer lives by the farm
ii. When he bought farm, he bought a 3 year option to buy the other property
iii. Option is irrevocable (could be like a unilateral contract)
iv. I will sell you my house in exchange for your promise for $100K, my offer is
revocable at any timebut becomes irrevocable upon acceptance.
v. Have to receive a quid pro quo in exchange for the option
vi. In this case, there was a payment made for 3 year irrevocabilitythe
consideration of $100 is what bought the option of irrevocability. 2 years
later, he purchased a new option for 5 years for $100. Neither option never
excercised either (Exercising the Option mailbox rule doesnt apply)
but agreed to extend the option again for 3 yearsBUT, no supported by
consideration because the didnt pay for the option. 3rd option is 1976-1979.
vii. The owner of property died in the middle of the 3rd option, buyer notified
owners wife he wanted to exercise the option and buy the property.
viii. The fact that an option fails, does not mean that the underlying offer
fails. The underlying offer was valid until the offeror died.
ix. Death of offeror terminates the offer w/o noticebut here the offeror is
a co-offerordeath of either co-offeror terminates an existing offer.
x. What if acceptance happened before death? Does death of offeror terminate
the offer if the acceptance was valid? No.
1. B sells me 30 day option, on day 35 A says accept. A reasonable time
was 38 days. When did the offer lapse? Look on p. 172
2. I will sell my car to you if you do x consideration
3. But if phrased in a because sort of way then it probably isnt
consideration. I will give you my car because no consideration
b. If an option is paid for, offer does not die with the offeror b/c the option makes offer
irrevocable
i. Here only one offeror died, but that was sufficient to kill the offer too
c. The underlying offer does not necessarily fail even if an option fails for lack of
consideration
62
C. UCC 2-205 (this only applies to sale of goods and only applies where there is an offer.. this
does not create an offer)
a. Tells us when an offer otherwise revocable for lack of consideration becomes
irrevocable
b. *Offer by a MERCHANT- offer made by merchant, only needs one merchant
i. This does not work with catalogs b/c the offeror is the customer
c. *Must be a SIGNED WRITING
i. Offeree benefits from irrevocability; so when an offeree provides the
documents for the agreement offeror should look out for language of
irrevocability
1. Ad in newspaper is not signed writing
2. What if signed writing was reproduced in the newspaper??
3. Signed electronic writing?
d. If no time period stated for the irrevocability without consideration a REASONABLE
TIME fills in
i. A stated time can be enforced even if it seems unreasonable
ii. Bock says you cant have an irrevocable offer open for longer than 3
mo.s under 2-205, but Beaux makes the argument that you can read 2205 to be saying that a reasonable time that would fill in when a time is
unstated cannot be longer than 3 mo.s
iii. But if a time is stated and is longer than a reasonable time, go with the
stated time
What if offer states lapse period for greater than 3 months?
Reasonable time is limited to 90 days. So, if someone says irrevocable for
120 days, its only irrevocable for 90 days.
Or, if offer says 120 days, its irrevocable for 120 days.
If you sold an option it will be open for 120 days.
90 days is a reasonable time of an unstated lapse period
others say, 90 days is only applicable to a reasonable time
in no event sounds like neither one can exceed 90 days.
any such term of assurance.
HYPO: catalog w/ order form. Order form says: I give my firm
assurances the my offer to buy your products will not be revoked
for 60 days. Is it revocable by me in the 60 days period?
Who made offer? Buyer made offer on form provided by
another party.
2-205 doesnt kick in because the party making the offer
is not the merchant!!
D. I have bought an option for 10 days; on day 5 I reject the offeris the offer terminated by
my rejection?
a. Could I come back on day 7 and then accept the offer?
b. An estoppel problem? Shouldnt the offeree get the whole 10 days he paid for?
Problems, p. 173
81. Least likely to be held to giving firm assurance the offer will be held open: the
third one
63
The first two were adequate.

82. If B gives me $100 to hold offer open for one month, but if he paid for the
optionmaybe B should get what he pays for. Estoppel could be madeoptions
are not terminated.??? But naturally, if someone rejects an offer, offeror will go
offer to someone else. IF SOMEONE PAYS FOR AN OPTION, IT IS NOT
REVOCABLE.AND AN OBJECTION TO THE OFFER WILL NOT TERMINATE THE
OFFER/OPTION UNTIL THE PAID FOR PERIOD EXPIRES.
83. First refusal is a condition. If something happens, this thing will ripen into an
offer if it is paid for. When L notified T of saleright of first refusal became an option
if it were paid for..was it paid for? Not a 2-205 problem so must be paid for. Was
likely paying more rent for the option. 30 day optionmailbox rule. He was timely if
the mailbox rule applies---- BUT mailbox rule does not apply to the exercise of
options. So he was late. Mailbox rule protects offeree from revocation from offeror. If
offeree has option, does he need that protection? No, because he has paid for an
option and an option is irrevocable. The excecise of the option is the acceptance of
underlying offer only when the acceptance is received? If I buy a 30 day optionbut
mailbox doesnt applywhat have I bought? Its actually less thean 30days because
have to subtract days it takes to get there.
Half the mailbox rule--- binding when it is sent, provided that it is received. If
he waits until the 30th day to send ithe gets everything he paid for.
Mailbox rule does not apply to the exercise of options, unless the offeror says
it does in the offer
Exam advice
Dont start out with the two parties are merchants. Establish why this is important and
then state that.
Read the question from top to bottom without writing on the test b/c things might change.
If these have a part A and part B, read all of the questions so you can understand what the
real issue is in A.
IRAC the answer
First Exam Question on Pg. 174
Any time that you have a problem with a date, then the date will most likely be important.
Since the first sentence doesnt involve the two parties, then label it as a data. 1st
communication = Thompson called Case about buying the tractor (we dont know what he talked
about? ITS AN INQUIRY). Buyer to Seller. If your answer starts with any other communication,
then youre out of order. If the Second communication is, I accept. Then only reference the
previous terms. If terms are missing, talk about the 1 st communication, then the second
communication (there was a price here, then there was a price here; there was no quality here,
there was quality here). Somewhere the offer will pop into existence, and ONLY THEN will you be
able to talk about the acceptance rules. 2 nd Communication is Seller to Buyer (Thompson to
Case) saying he will sell. START WITH THE STANDARDS, before you make any damn conclusion.
The standard of Promissory language is I will. The offeror said (NEVER PARAPHRASE), I WILL
SELL THE TRACTOR TO YOU. Next, The price term is set by the offeror at $450. Next, The
offeror stated that he would sell the offeree the tractor, which indicates that the quantity is
one. Next quality (Gilroy the court found it to be sufficient because it wasnt his theatre so the
need for specificity probably doesnt make much difference). In this case it is sufficient because
the buyer called Case about buying the tractor. Upon an agreement you may take the tractor.
This is language seeking a promise (BILATERAL!! For acceptance part of question), and they are
ON THE PHONE. But, they hung up Next communication is March 1 st, two weeks later.
64
Telephone offers typically lapse when the phone call is voice to voice. But upon agreement
suggests that the offer didnt lapse when they hung up. We have to identify what the rule is. In
a telephonic communication, we use the face-to-face rule. The offers lapses at the end of the
conversation, unless there is something else that the offer wouldnt lapse. In this case, the
offeror said upon agreement. A month from the conversation, Peterson who had learned from
the offer from Thompson sent in a notice of acceptance. Now we talk about acceptance, if
Thompson would have picked up the tractor in the presence of Case, then this could be a
promise. However, bilateral offers have to be accepted with a promise, but under the UCC,
indifference is the issue. When indifference is the issue, the offereror can accept by promise or
by beginning of performance. The promise was to exchange the tractor for money, not for just
someone picking it up. So picking up the tractor is not the beginning of performance. Now if
picking up the tractor was the beginning of performance, UCC 2-206, Case must know within a
reasonable time when he began performance. What is a reasonable time? Look to the facts, if
using the tractor for crops then this is in the winter and lapse is longer. If the tractor is for
plowing snow out of the driveway, then the lapse might be a shorter period! So the DATA in the
first sentence was for a reason! Theres another possible issue: the offer could have been
accepted through another way. The ACT of DOMINION. When he took the tractor, he is acting in a
dominion like way.
Second Exam Question
Equal Publicity Rule Problem (Pepsi points) if done effectively, it revokes the offer. This
rule was discussed in the revocable offers section of the book.
You cant assume that the offer is there in this problem. So take the fork in the road. So if you
think the offer is there then you see if the Equal Publicity Rule applies. If you dont think the offer
is there then there is nothing to say about the EPR.
In this problem, is there any promissory language? In the pampers box, assuming that there is
promissory language (I dont think so though), is there a definite $QQ? No. What do we know
about catalogues in general? Theres usually no promissory language on a catalogue. The
catalogue in this case is not the offer. You cant just determine this and move on to the next
problem though. You have to talk about the other fork and discuss the EPR. So lets suppose that
there is an offer, so then we move on to if the offer can be revoked. In the CATALOGUE, P and G
said when the offer expired. This is not EPR because the expiration date should be on the box
because not everybody who buys the box sends in their name to get the catalogue.
Multiple Choice Question
Compare the order of events to the First Exam Question. In #1 the buyer contacted the seller,
which tells us he knew something about the tractor. In this problem there was an ad. Using the
word offer in an Ad does not make the Ad an offer. The problem says, John offered to buy. Since
you read this in the problem, wouldnt there be no reason to discuss if the ad was an offer? The
Ill get back to you language tells you something about the lapse. They were face to face and
usually an offer face to face ends when they leave, unless there is something that indicates
otherwise. Seller said that he would get back to him so he is not seeking acceptance at that point
so the offer has not lapsed. Two days later indicates whether the acceptance of the offer was
soon enough.
65
a) This answer is wrong because even though John did not intend to buy the puppy, his
outward expressions made the seller warranted in believing that John would by the
puppy.
b) This answer is wrong because the problem indicates that the offer did not lapse
c) If this is a UCC transaction (which it is because a puppy is a good), what modes of
communication are accepted? A fax is a reasonable method. THIS IS NOT A MAILBOX
RULE PROBLEM because the offer was received.
d) DING DING DING
VI. CONSIDERATION the product of an offer and an acceptance (on the exam say heres the
offer and heres the acceptance. Only discuss consideration in the plausible situation where it
might not be present)
A. *Usually a problem that arises in the family relationships, where gratuitous promises are
more likely to arise
a. No consideration = non enforceable promise
b. Nature of commercial relationship, consideration is normally there. If there is a
promise that doesnt seem to require anything in return normally a consideration
is there. This is why it comes up in family relationships, contests, etc. But in
commercial context, you are always giving something to get something.
c. HYPO: What if there is a suit filedthen we settle a suitand then D finds out the
suit is bogus and doesnt want to pay. Does D have to pay, was there consideration?
d. *must find a nexus btw the promise made and the detriment incurred
e. *promise must produce a benefit for the promisor (not necessarily monetary)
f. In consideration of the fact that you make less than your brotherno consid
g. Because you named your child x I will give you no consid? Also a motive problem,
he hasnt extracted anything
h. If what you are bargaining for has already happened, then it cant be bargained for.
i. I will sell you my car if you pay for it, with that kind of quid pro quo normally
consideration
j. I will give you this option to buy my house because you gave me $100 last week
consideration?
k. Consideration v. Motive: looking at the motive, may help us to determine if there is
consid
l. HYPO: I will deliver to you my car if you promise X, I will give you my car if you do
X probably consideration since you are doing something for me to give car. Cant
tell what the motive is. I will give you a car if you give me $100 motive is $100.
Consid fails where I am not making the promise bc it benefits me. I will give you my
car because you are such a great person this is motive but not consideration. I will
give you my car if you will be a good person I am soliciting something from you in
exchange for my car.
B. Promise by the offeror must induce the detriment of the offeree; doesnt have to be
monetary
a. Kim v Son: significance of how emphatic promise is does not matter. Promise
made was to pay a debt that wasnt his. Just because promise is emphatic doesnt
mean there is consideration. This was just a gift.
i. UCC 2-205 option to hold offer open may be binding even if no
consideration
ii. UCC 2-209(1) modifications do no require a separate consideration
66
1. I will sell you my car for $1K and B responds I acceptno 2-207. But
next day I ask will you change the delivery date and you say yes. You
havent done anything in exchange to get car two weeks earlier (no
consid)but 2-209 says a modification doesnt have to be supported
by consid to be binding. Opposite of how common law would look at
this.
2. A will see 5K car for 2K because you are my brother. bc my brother is
not consid. But as long something is being exchanged for car is
ok/good enough.
b. Hamer v. Sidway boy gives up swearing drinking, etc. till 21st b-day
i. Promise by promisor must induce the detriment. I will give you x if you do y.
promis is x, detriment is y.
ii. Uncle promised money to nephew, if he gave up drinking till 21, then nephew
sold the rights to the contract to something else. Then uncle dies. Death of
uncle doesnt cancel contract because the contract has already been
accepted. Was not doing those things bad or good for the nephew? It doesnt
matter, detriment means to give up doing somehting that you
otherwise had the right to do.
iii. If this contract was made today, it wouldnt be a detriment, because you
cant drink under 21. But might still be contract under the swearing part
today.
iv. Detriment does not mean harm in this context detriment means change
v. Offer and acceptance rule: must know of offer befor you can accept it.
consid is part of the offer/acceptance process
vi. Is it possible to have consideration, where promisee didnt receive the
promise? No.
vii. Did my promise to sell him the car induce his detriment?
viii. Bc you cut my lawn yesterday, I promise to give you $1k. But promise didnt
induce detriment, so you already cut lawn.
ix. Only the one that fails disappears. Not all of the consideration has to be
adequate. Amount of consid doesnt matter. Whether consid is sufficient is
not about amount, about the character of it.
x. If person is not here, and an offer is madeno contract. There detriment
couldnt have been induced by the promise.
xi. I will give you $10 if you cut Fs lawn. Did the promise induce the detriment
yes? Consideration doesnt have to flow between promisor and promisee. So
if I cut lawn, you owe me $10.
xii. What ifI will give K $10 if B cuts my lawnB cuts lawnact still could be
induced by detriment.
xiii. Pre-existing duty. Sometimes no consid bc offeree/promisee already had the
duty to do what the promise induced them to do.
xiv. Lady on second floor of burning house, husband give by stander 100 to go
rescue wife. What if the person going to rescue is a fireman on duty the
fireman already had to go rescueso promise couldnt induce the detriment
xv. Consideration not required in 2-205 and 2-209(1)
xvi. Athlete, contract price based on his college performanceso just ok..then has
a good first year. Athlete will want to renegotiate contract. The say they will
up paybut then after the next season the owner doesnt pay the
renegotiated price, no consid bc athlete had already promise to pay for the
original amount
67
1. Novation: puts original contract out, terminate old contract. Physically

destroy orinignal contract in presence of witnesses, or the like. If
original contract is terminated, the athlete would have no pre-existing
duty to play the next seasonso if he does play the next season, the
owner has to pay the renegotiated price.
c. What IS consideration?
i. Motive is the base of consideration. They are not interchangeable. Evolution
of common law into what = (2-205) (2-209)
ii. Promise must induce the Detriment = loss or harm (as in estoppel)
1. detriment = giving up a legal right or making a change in position
1. Existing debts
i. payment of smaller sum than due will not be sufficient to
discharge debt
ii. BUT paying a debt earlier than you were obligated to,
paying in a different medium, etc. is sufficient for
consideration!
2. If you save someones life, and they come to conciousness and say, I
will give you 10,000 dollars BECAUSE you saved my life, the detriment
(work to save their life) was not induced by his promise. It would be
different if he said, I will pay you $10k, if you save my life, and then
you save his life.
3. detriment = the quality term
iii. Must be motivated partly by the offer for detriment to count (i.e. you must
know of the offer)
iv. If you give up a right when the law precluded you from doing that thing
anyway, it is not consideration (i.e. an 18 year old gives up drinkingwell law
says he cant anyway)
v. Amount of consideration does not matter
d. What is NOT consideration
i. No such thing as past consideration b/c then the detriment is not induced by
the promise
ii. Altruistic motives consideration; affection consideration
iii. If you have a pre-existing duty (obligation) to do something, this act
consideration [i.e. a fireman or policeman]
iv. Trend is now towards moral obligations = consideration
e. Intention to be bound is not consideration.
i. I will sell you my house for $20. For consideration purposes, it doesnt make a
difference if its for $20 and $20,000 dollars.
C. Consideration substitute?
a. Estoppel with a gratuitous offer you could estopp the offeror from saying that it
fails b/c theres no consideration b/c offeree will more than likely have relied on the
gratuitous offer
b. *benefit + detriment do not have to flow from A to B onlythere can be multiple
parties, just so long as someone is benefiting and someone incurs detriment (p.
227)
D. Cases
a. Kirksey v. Kirksey courts find that this is a gratuity b/c no benefit to the
offeror/promisor
68
i. P is widow of Ds brother. Bro in law, wrote letter saying if you come see me
you will have a place to live. Is this a promise to make a gift or is it seeking
something in return. She moved, and he kicker her off the property.
ii. Justice Orman says consid is moving the 60 miles
iii. Majority says no consid, promise to give gift on the condition that she move.
Say bro in law wasnt gainging anything in return, so no consid. Why did bro
in law do this? Anything in motive of promisor that benefited him. Her moving
60 miles wasnt soliciting a benefit for promisor.
1. Later researchers found, the bro in law thought if he settled additional
land, he would be entitled to buy additional property in vicinity at a low
cost
2. So, he was motivated not by what was good for her, but what was
good for him
3. Later, he realized he couldnt attain more land for cheap, so he kicker
her off land
4. Had these facts been known, there would have been consideration.
iv. But, once the gift is completethats the end of the discussion. Cant take
back a gift.
b. Pensy predicate for a breach is existence of a contract!
i. bargain theory of consideration does not actually require the parties actually
bargain over the terms of the agreementthe bargaining is within the
essence of the agreement itself
ii. Does a warranty exist on this product, but no warranty if no contract, and no
contract if no consideration
iii. Specifications describe the quality of the work, here it was specification with
respect to the materials to be used in the job.
iv. Paving a school district.
v. Agrite (similar to gravel- what they used under pavement) was available at
no cost. Agrite is free because? Why did they give it away? To whose benefit
was it to give it away for free? The benefit Agrite people got from giving the
Agrite away was the disposal/absence of the agrite.
vi. By them saying it was free, induced the detriment of Pensy taking the
Agritethis very detriment that induced Agrite to make the promise for free.
vii. Bargain theory of consid does not actually require that the merchants
bargained over the goods.
viii. Asphault on paving work started to crackschool district wanted them fix it,
remove agrite.
ix. Was the agrite a gift or part of a contract? Was it a gift on condition? Or, a
bargained for exchange?
c. Fiege relinquishing (settling) a valid legal suit is consideration
i. is consid present when one surrenders right to litigate?
ii. Birth of illigitamate child.
iii. Quid pr quo: she is preg, says you are dad I wont turn you into cops if you
pay expenses related to worth of child (bastarding a child a crime). The
payments stop from dad, he found out he wasnt the fatherhe found out
from her doctor. Her suit against him is on the underlying agreementno
about child support. Guy says they were never sexually involved..and just
paid because he didnt want his mom to find out
iv. Was her claim bogus? Did she give up anything that she actually had if her
claim were false?
69
v. Did she know at the time she entered the agreement that he wasnt the
fatheror, did she believe her claim might be true?
vi. Rules: divide between before suit was filed and after
1. Before: Youre father, I wont sue if you pay
1. Could be its not a question of if it is true, but rather if it were
mad in good faith or not.if it werent true she wouldnt be
giving up anything. Just because it turned out it was not true
does not mean there was no consideration. If there is
uncertainty, there is consideration
2. After
i. Once litigation is proceeding, compromising a doubtful claim is
fine??
ii. Surrender to an invalid claim to one who does not have an
honest belief, is not consid
iii. Prior to suit: if good faithconsid
iv. Once under wayrelenquishment of suit is sufficient consid (has
nothing to do if he is the father)
E. if performance has already happened, none of this matters!! once the gift is given, the
deal is done
Problems, p. 193
5. Pensy. There was no payment, county gave M the pump. Whats the difference
between Pensy and this problem? Product given in Pensy was toxic materialthey
wanted to get rid of it; this caselike daddy at christmas, wasnt to get rid of pump,
was gift to M.
What if everything the same but pump fails in a catastrophic way? She couldnt
sue unless there was a contract.
What if after class go to Harrahs with last $20. Greeter hands you a form to join
future millionaires club. Write you name, get a card, etc. Its free. If you join, get
to go spin wheel with possibility to win $1 million (prob couldnt get past Lucy)--then casino renigs. Why did they want you to join the clubnow they have
your contact info. They will tailor their ads to you. Their consideration to let you
spin the whell. Tropicana tried to say their was no consid. Here there is no
obligation on offeree to participate.
Peppercornif you are required to do anything it is enough. Is person living on a
farm under obligation to pay rent. Landlord said if you show me the lease you
dont have to pay rent. Didnt have to show lease, but he did sufficient consid.
Landlord wanted to see lease.
UCC
o
o
If it is a matter of UCC but UCC does not say anything about that area of law, use
common law
UCC Article 2 (Louisiana has not adopted, 49 other states have adopted Article 2
as the law)
Two exceptions: contracts for services are not included, real estate.
These are not considered goods under UCC Article 2.
70
2-204(3) Formation in General

Even though one or more terms are left open a contract for sale does
not fail for indefiniteness if the parties have intended to make a
contract and there is a reasonably certain basis for giving an
appropriate remedy
2-305(b) Open Price Term
The parties if they so intend can conclude a contract for sale even
though the price is not settled. In such a case the price is a reasonable
price at the time for a delivery if
(a) Nothing is said as to price; or
(b) The price is left to be agreed by the parties and they
fail to agree; or
(c) The price is to be fixed in terms of some agreed
market or other standard as set or recorded by a third
person or agency and it is not so set or recorded
2-310(a) Open Time for Payment or Running of Credit; Authority to Ship Under
Reservation
Unless otherwise agreed
(a) payment is due at the time and place at which the
buyer is to receive the goods even thought the place of
shipment is the place of delivery
First communication is Circle K to customer by the signs you see in windows

Second communication is still made by Circle K, more info inside
Everything customer does at this point is made in the context of the info Circle K has provided
him
Customer puts beer and $5 on counter
2011 exam
e-mail
webthese two combined are similar to Circle Ks first two communication
Quality term is not the seaside resort, not even everything she knows about the resort. Have to
have a standard. Gilroy theatre was a sufficient quality termthe question wasnt whether it was
a quality term, but whether it was a sufficient quality term. Could have the same quality term in
a different context, and sufficient theatre wouldnt be sufficient. In Gilroy, why was he building
the theatre? For his purpose of the theatre, number of seats and color scheme doesnt matter to
him. How important are the details to these people that are in the contract. 2011: she is renting
a room in a resort. How do you choose which resort hotel you want to stay at? If you are going to
a vacation on the beach, not spedning too much time in roombut going for the ammenities that
are offered outside the room. I will sell you my blue car for $1000is blue car sufficient? When
buying a car for $1000..normally buying just the basic transportation. If standing in front of car,
and person says I will sell you this caryou will know a lot about the car.
71
ALWAYS ARTICULATE THE STANDARD AGAINST WHICH YOU ARE MEASURING THINGSOFTEN
FOUND IN QUALITY TERM.
RULES On p. 126 about mailing stuff

PROBLEM 64!!!!
EXAM TIPS:
start with what the parties said, not what they meant!! (do not paraphrase!)
****notice how the offer comesin writing? or verbally? or over the phone?
PROBLEM #67 is a model for the final
if a question has dates in it, pay attention to them
DO NOT HYPOTHESIZE WHEN THERE ARE NO HOLES IN THE FACT PATTERN
Brainstorm list of promissory language (I will)
? Is I would promissory? no b/c if you meant I will then you would have said it
(question 26 p. 41)
Brainstorm list of communications similar to catalogs, brochures, advertisements
Brainstorm list of willing language (For Sale)
Brainstorm list of words of limitation
Brainstrom other ways to say this is a form letter
*seed farmer sends out letter about his seeds; should recognize that farmer is solicitng as
many dealers as possible
Brainstorm other kinds of contracts that need duration
72
brainstorm language that would indicate sale of goods v. sale of services/real estate
*Work all possibilities
even when missing necessary facts in the fact pattern provided
if the plumbing job was for new construction I would say and tackle if the plumbing
job was for a building already constructed I would say
hypothesize all possible outcomes!
*Should be able to tell what the question was from your answer
*Exam wont tell you what the problem is, will just tell you what happened
*READ LIKE YOUVE NEVER READ BEFORE
*Dont just recite general principles; look at the facts to determine if intent is there in light of the
principles
A. EXAM
a.
b.
c.
the best answer will contain ALL possibilities and reasons for conclusions chosen
dont find an ANSWER [dont think like the judge/jury; think like a lawyer]
EXPLORE
if the question says argue for the P you still have to explain the arguments the D
could present
*explain your conclusions on exams, make sure to say WHY
2014 EXAM TIPS

Analyze internet transactions the same way that you would if they were on paper.
Do not use acceptance and confirmation interchangeably.
Last phrase of 2-207(1) doesnt apply to confirmations.
2-310
Starlet problem no way starlet could win, but talk about how the common law should evolve.
That 2-207 should apply.
2-207(a) whatever 2-207(a) means, number 1 is that you have a contract. You either do or
dont have an additional term and the acceptance is not made expressly conditional on assent
(the language is close but doesnt track word for word of the statute). If offeror sends goods after
the offeree sends back an acceptance that is expressly made conditional on assent, THE
OFFEROR IS NOT BOUND TO THE ADDITIONAL TERM.
Last shot rule refers to the last person who submits a term is the one who is in control. 2-207(1)
removes the last shot principle because the offeror is not bound by the offerees most recent
term.
Consideration is not Intent to be Bound
73

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CONSIDER THE SIGNIFICANCE OF EVERY WORD!

Beware of summer houses in winter

CONSIDER THE SIGNIFICANCE OF EVERY WORD! Beware of summer houses in winter

CONSIDER THE SIGNIFICANCE OF EVERY WORD! Beware of summer houses in winter

Remember! In order for intent to be present every other element of an offer

CONSIDER THE SIGNIFICANCE OF EVERY WORD! Beware of summer houses in winter

h. If there is no offer, there is no promise no promise, no intent

C. Offers Distinguished from Expressions of Opinion and Advertisements

CONSIDER THE SIGNIFICANCE OF EVERY WORD! Beware of summer houses in winter

iii. Thus, there was a warranty on the outcome of the operation, so he

CONSIDER THE SIGNIFICANCE OF EVERY WORD! Beware of summer houses in winter

2. Could be expressed with words of limitation

CONSIDER THE SIGNIFICANCE OF EVERY WORD! Beware of summer houses in winter

E. Offers Distinguished from Preliminary Negotiations and Price Quotes

i. Consider subsequent transactions/communications in light of what came

b. Fairmont Glass v. Cruden Martin

CONSIDER THE SIGNIFICANCE OF EVERY WORD! Beware of summer houses in winter

a. Catalogs are solicitations of offers to buy; not contracts to sell

v. Consider factual context

CONSIDER THE SIGNIFICANCE OF EVERY WORD! Beware of summer houses in winter

J. Equitable estoppel- if someone deceives another and the person believed to

I would/will consider just promise to consider, not promise to sell

CONSIDER THE SIGNIFICANCE OF EVERY WORD! Beware of summer houses in winter

CONSIDER THE SIGNIFICANCE OF EVERY WORD! Beware of summer houses in winter

Duration Needed for a Contract

Duration Not Needed for a Contract

CONSIDER THE SIGNIFICANCE OF EVERY WORD! Beware of summer houses in winter

CONSIDER THE SIGNIFICANCE OF EVERY WORD! Beware of summer houses in winter

Month to month payment is not about duration, its about

CONSIDER THE SIGNIFICANCE OF EVERY WORD! Beware of summer houses in winter

4. HYPO: I work at walmart and think a certain product

CONSIDER THE SIGNIFICANCE OF EVERY WORD! Beware of summer houses in winter

a. Nope! ***Cant fire for bad cause with at will

d. Joseph Martin Deli v. Schumacher, agreement to agree

A contract is a private ordering, fairness doesnt matter

CONSIDER THE SIGNIFICANCE OF EVERY WORD! Beware of summer houses in winter

In UCC agreement to agree can be enforcible

vi. Franchises [duration unstated]

Hypo: Home repairs. Home 360 is pretty much an

CONSIDER THE SIGNIFICANCE OF EVERY WORD! Beware of summer houses in winter

3 categories: Haines, employment, franchise

b. Terms of Payment/Price Term

price quote of $18,500

CONSIDER THE SIGNIFICANCE OF EVERY WORD! Beware of summer houses in winter

i. Subcontractor quotes are usually relied upon (unless

they specifically say they are not) because everyone

CONSIDER THE SIGNIFICANCE OF EVERY WORD! Beware of summer houses in winter

2. This contract would likely fail for want of payment

We agree now to agree later

CONSIDER THE SIGNIFICANCE OF EVERY WORD! Beware of summer houses in winter

i. They owned stock in each other, members of board of

UCC 2-305 fills open price

d. Eckles v. Sharman: Severability

CONSIDER THE SIGNIFICANCE OF EVERY WORD! Beware of summer houses in winter

a. Yes, if the contract has proven to be severable

CONSIDER THE SIGNIFICANCE OF EVERY WORD! Beware of summer houses in winter

Know the default

You are bound to the specifications of

CONSIDER THE SIGNIFICANCE OF EVERY WORD! Beware of summer houses in winter

For example: If you dont reply then you accept my offer.

Bilateral/Unilateral: ultimate performance is the same

CONSIDER THE SIGNIFICANCE OF EVERY WORD! Beware of summer houses in winter

A. General/Default Acceptance rules: