Counteroffer, Battle Of The Forms, And Indefiniteness Flashcards
Offeree’s power of acceptance is terminated when rather than accepting an offer, offeree makes a ____________.
Counteroffer.
What is a counteroffer?
An offer made by the original offeree relating to the same subject matter as the original offer, but proposing a different bargain and acts as a rejection (Restatement 39).
True or false: If implied (but not stated) in the offer, it is still treated as a mirror image and “responsive.”
True.
Per UCC 2-207, when the offeror is a merchant, what three types of additional/different terms in a return document trigger a counteroffer?
- Terms that are not definite or seasonable.
- Dickered terms changed (quantity or price).
- Proviso language added (conditional acceptance).
Per UCC 2-207, when the offeror is a merchant and conduct shows there is a contract after a counteroffer, is there a contract? If so, with what?
Yes, with terms that forms agree on and gap fillers.
Per UCC 2-207, when there is an offer and acceptance between two merchants, what three things will lead to a contract without the additional/different terms?
- Additional/different terms materially alter
- Offeror expressly limited acceptance to the terms contained in its offer.
- Offeror objects in a reasonable time.
Per UCC 2-207, if 2 merchants have an offer and acceptance with additional/different terms that do not materially alter, that do not offer limited terms, and the offeror does not object in a reasonable time, what happens?
A contract forms with additional/different terms.
When dealing with an offer and acceptance between two merchants, what three things are considered material alterations?
- Arbitration clauses
- Limited-liability clauses
- Warranty disclaimers
When must an offeror object to terms? Must the objection be in writing?
Objection must be done within a reasonable amount of time. It does not need to be in writing, although that is the smart thing to do.
Per UCC 2-207, what is the difference between different and additional terms?
Different means not the same and additional are to be construed as proposals for addition to the contract.
Per UCC 2-207, what rules are the:
- Knock-Out Rule?
- Drop-Out Rule?
- Best-Shot Rule?
- Conflicting terms knock each other out, and gap fillers are used to fill the gaps.
- Conflicting terms drop out, and the terms of the offer are preserved.
- Court examines both parties/ standard terms and include the one that is the most fair.
General Rule: No mutual assent exists (and thus, no contract) unless the agreement of the parties is _________________ ______________.
Sufficiently certain.
Parties enter into an agreement to agree at some time in the future. Failure to provide needed ___________ to monitor the parties’ performance shows a lack of intent to make a commitment.
Terms.
What two things are needed for a contract to not fail from indefiniteness?
- The parties intended to make a contract, and
- There is a reasonably certain basis for giving an appropriate remedy.
What are four UCC provisions to cure indefiniteness?
- UCC 1-303, Course of dealing and course of performance-Based on the parties’ behavior in performance of the contract in question after the contract is formed. There must be repeated occasions for performance (rather than a single delivery) under the contract.
- UCC 2-305, Open price term-A court can set a reasonable price if one of the following exist: Contract is silent to price, price left to be agreed on ) parties fail to agree, or external standard used to establish price agreed by parties but that standard fails to do so. *courts tend to use market price as a reasonable price
- UCC 2-308, Place for delivery-If not specified, it’s seller’s place of business; residence if no business office).
- UCC 2-309, Time for delivery-Delivery is due within a reasonable time. Courts consider the nature of the transaction, course of dealing, and time needed for seller to make/get goods. Goods must be delivered at a reasonable hour.
