Acceptance Flashcards
(20 cards)
Types of acceptance
- Verbal/Written Acceptance: The Mirror Image Rule and the “Battle of the Forms”
- Acceptance by Performance
- Acceptance by Silence
Mirror Image Rule
offer and acceptance must match
Common law where no one has acted
Executory Agreements = Mirror Image Rule
Common law with action
Last shot: Contract is on terms of the last non- conforming counter-offer
Ardente v. Horan
Under common law in the event of executory agreement (neither side has performed anything) an offer and acceptance that are not mirror images of each other means there is no creation of a contract
Additional Terms in Acceptance or Confirmation
UCC 2-207
A definite and seasonable expression of acceptance or a written confirmation which is sent within a reasonable time operates as an acceptance even though it states terms additional to or different from those offered or agreed upon, unless acceptance is expressly made conditional on assent to the additional or different terms. [Answers: Is there a valid contract?]
The additional terms are to be construed as proposals for addition to the contract. Between merchants such terms become part of the contract unless:
the offer expressly limits acceptance to the terms of the offer;
they materially alter it; or
notification of objection to them has already been given or is given within a reasonable time after notice of them is received. [Answers: If so, what terms?]
Conduct by both parties which recognizes the existence of a contract is sufficient to establish a contract for sale although the writings of the parties do not otherwise establish a contract. In such case the terms of the particular contract consist of those terms on which the writings of the parties agree, together with any supplementary terms incorporated under any other provisions of this Act. [Answers: First, is there a valid contract? Second, what are the terms?]
Subsection 3 is similar to the last shot rule, but courts only honor the overlapping terms.
Step-Saver v. Wyse Technology,
Offeree must demonstrate an unwillingness to proceed with the transaction unless the additional or different terms are included in the contract
3 Tests for considering conditional acceptance
Materially altering the contractual obligations solely to the disadvantage of the offeror
“Magic words” terms of the confirmation are the only ones we are willing to accept orders
Offeree must demonstrate an unwillingness to proceed with the transaction unless the additional or different terms are included in the contract
CISG Article 19 - Counter offer
A reply to an offer which purports to be an acceptance but contains additions, limitations or other modifications is a rejection of the offer and constitutes a counter-offer.
However, a reply to an offer which purports to be an acceptance but contains additional or different terms which do not materially alter the terms of the offer constitutes an acceptance, unless the offeror, without undue delay, objects orally to the discrepancy or dispatches a notice to that effect. If he does not so object, the terms of the contract are the terms of the offer with the modifications contained in acceptance.
Additional or different terms relating, among other things, to the price, payment, quality, and quantity fo the goods, place and time of delivery, extent of one party’s liability to the other or the settlement of disputes are considered to alter the terms of the offer materially
ProCD v. Zeidenberg,
There is no differing “form” so the common law last shot rule applies.
Contract is on terms of the last non- conforming counter-offer.
Hill v. gateway 2000, “”
There is no differing “form” so the common law last shot rule applies.
Contract is on terms of the last non- conforming counter-offer.
Klocek v. Gateway,
Minority Rule: Where there is not a written offer but there is a written acceptance
Battle of the Forms rules.
Oral agreement and written acceptance
Terms in the box are an offer that the consumer must expressly accept in order for the terms to be enforceable
Restatement § 30. Form of Acceptance Invited
An offer may invite or require acceptance to be made by an affirmative answer in words, or by performing or refraining from performing a specified act, or may empower the offeree to make a selection of terms in his acceptance.
Unless otherwise indicated by the language or the circumstances, an offer invites acceptance in any manner and by any medium reasonable in the circumstances
Carlill v. Carbolic Smoke Ball co.,
An offer to become liable to anyone who before it is retracted performs the condition and although the offer is made to the world the contract is made with a limited portion of the public who come forward and perform and the condition on the faith of the advertisement
White v. Corlies & Tifft,
An offeree must appropriately manifest acceptance to an offer.
In acceptance by performance a certain amount of specificity is required and the offeror needs indication of acceptance
Petterson v. Pattberg, “”
A unilateral contract may be withdrawn before the act requested has been performed. The offeror can revoke before offeree accepts however brief the interval of time between the two acts
Unilateral Ks and “Executory” Performance – Traditional Rule: offeree must complete performance to accept. - old approach
Unilateral performance
Where the contract is unilateral (only allows for acceptance via performance) when the individual starts performing, an option contract is created that prevents the offeror from revoking the offer
Restatement § 54. Acceptance by Performance; Necessity of Notification
Where an offer invites acceptance by performance, no notification is necessary to make an acceptance effective unless the offer requests such a notification
If offeree who accepts by rendering a performance has reason to know the offeror has no adequate means of learning of the performance with reasonable promptness/certainty, the contractual duty of the offeror is discharged unless
Offeree exercises reasonable diligence to notify the offeror of acceptance, or
Offeror learned of performance within reasonable time, or
Offer indicates that notification of acceptance is not required.
Silence
Where an offeree “takes” the benefit of offered services with reasonable opportunity to reject; or
Offeror has given offeree reason to understand that assent may be manifested by silence, and the offeree intends his silence to be acceptance; (only enforced against the offeror) or
Previous dwellings make it reasonable to accept through silence.
Hobbs v. Massasoit Whip Co.
Conduct which imports acceptance or assent is acceptance or assent in the view of the law - previous dealings
