Flashcards in Page 4 Deck (51):
What is the question you should ask when determining whether a commitment/intention to be bound was present for an offer?
What a reasonable person, hearing the words spoken, under the circumstances, believe the speaker intended to enter a contractual relationship?
Why do you not usually have to judge on an MBE question whether a commitment or intention to be bound was made for an offer?
Because examiners know that different people have different opinions, so you just have to recognize the rule
Does it Matter what the intention of the speaker is when making an offer?
No, so just look at the language and the circumstances
What are things That can cause trouble for an offer?
Preliminary negotiations, ads, reward offers, joke or frolic, ambiguous language, auctions, etc.
Are preliminary negotiations considered offers with intentions to be bound?
No, they are a manifestation of a willingness to enter a bargain without the intent to conclude a bargain until a further manifestation of intent has been made
Examples of things that are not considered offers?
Opinions, predictions, encouragement, hopes, intentions, estimates, inquiries
If an offeror retains the right to make a final decision, is that an offer?
No, it's an invitation to negotiate or make an offer
What are some examples of situations where an offeror retains the right to make a final decision and is therefore not an offer?
Asking someone if they're interested, or if they would give you something, or saying I quote, or I would consider
Are ads considered offers?
No they are just invitations to deal or statement of intention to sell
What is the caveat for when an ad is an offer?
It states a quantity and language of commitment with all material terms, including the offeree
The language first come, first served, can change an ad into what?
Can mass mailings, catalogs, or pricelists be treated as offers?
No, those are also advertisements
Do Price quotes show an intention to be bound enough to be an offer?
What is The reason the most ads are not offers?
Most ads are indefinite about quantity and other terms, seller should be able to choose who they deal with, ads are usually addressed to the general public, so if that were an offer, the seller would've over accepted
What are the ways that an ad will be an offer?
- has definite terms
- clearly an intention to be bound
- invites addressees to take specific action without further communication
- over acceptance is unlikely
What are The times that quoting a price can be considered an offer?
It is directed at a specific person and other words like for immediate acceptance are included
Why is a first person offer usually considered an offer?
Because only one person can form a contract by accepting
Are reward offers considered offers?
Yes, and the power of acceptance is limited to the person that does the act, since only one person can claim a reward
Why Is a letter of intent not considered an offer?
Because no one is bound to the terms of the letter
What Is an offering circular?
A general mailing sent out by merchants to a number of potential customers setting forth terms
Why are offering circulars not usually considered offers?
They are treated as ads and the test is whether a reasonable person in the shoes of the addressee would think it was addressed to him individually, then it will be treated as an offer, or only has one of a number of recipients, and it's just an invitation to deal
Usually the word offer means what, and the word quote means what?
Offer means offer and quote means invitation to deal, but this isn't always the case
If a reasonable person would conclude that something was a joke, made in anger, or mere banter, is that an offer?
No, example the PepsiCo case with the harrier jet
If you're unsure because of ambiguous language whether an offer was made, what are the two situations that courts will consider in this case?
- Business context
- social/domestic context
How is ambiguous language treated in a business context about whether or not an offer has been made?
Court presumes intent to be bound
How is ambiguous language treated about whether or not an offer has been made in a social or domestic context?
Court presumes legal relations were not intended
The role of an auctioneer?
To accept or reject the bids
Who makes an offer in an auction situation?
The bid is the offer and the auctioneer just present the items
Most actions are considered what?
With reserve unless otherwise stated
The two types of auctions?
With reserve and without reserve
What Is an auction with reserve?
Owner reserves right to refrain from holding the auction or interrupt it, terminate it, or withdraw the item even after the bidding starts. Owner can also make a bid and buy his own property.
Who is the offeror in a with reserve auction?
Bidder and the contract is complete when the hammer falls
When can a bidder withdraw in with reserve auction?
Before the hammer falls and that terminates all prior bids
When An auctioneer puts an item on the block, and calls for bids, what happens?
That is not an offer, but an invitation to make offers, it is why he can withdraw the item even after bidding has started until he hammers down or accepts
What does each new bid do in a with reserve auction?
Discharges all earlier ones
If a bid is withdrawn before it is hammered down in a with reserve auction, canon an earlier bid be accepted?
No Because each new bid discharges all earlier ones
What Is a without reserve auction?
Every item Will be sold and there's a promise by the owner that the auction will be held and the property will be sold to the highest better, and nothing will be held back or withdrawn, unless no-bid is placed within a reasonable time
Once an auctioneer calls for a bid in a without reserve auction, can he withdraw the item?
No, he has made an irrevocable offer
Is putting a contract out for bids considered an offer?
No, the bids get submitted in response to the offers, and the builder is free to decline or accept any bid even if it isn't the lowest
What does it mean that an offer has to have definite terms?
Essential terms of the offer must be certain and unambiguous or empower the other person to specify terms to clear up any uncertainties
Does an offer have to contain all material terms?
No, But it has to have subject matter, parties, price, and sometimes a few other key items
If An offer is missing terms, can the law fill them in?
Yes, If they are not material
If one of The major things that need to be present for an offer is not present, does that mean there isn't an offer?
Not necessarily, as long as the expression otherwise shows intent to make a bargain, or the court can fill in the omitted term
What Does the UCC say about definite terms in an offer?
If a few terms are left open, a contract doesn't fail for indefiniteness if the parties intended to make a contract and there's a reasonably certain basis for giving an appropriate remedy
What is The modern rule about definite terms for an offer?
You can have an offer that states subject matter with certainty and leaves out all other majority terms and still is a good offer because everything else can be reasonably implied
Exam - If an offer only states the subject matter and then tries to state another material term but doesn't do it with certainty, does that fall under the modern rule for definite terms for an offer?
No, if it tries to address something like price, because it doesn't have to, It cannot do it ambiguously, otherwise the offer will fail
What are the four major rules for definite terms for an offer?
- modern rule
- traditional rule
- significant minority rule
- common-law and UCC
What is the traditional rule for definite terms for an offer?
Subject matter and quantity have to be included
What is the significant minority rule for definite terms for an offer?
That all material terms have to be stated in order to have a contract. This is no longer in effect because the modern rule and UCC say an offer as a state the subject matter with certainty, so if you see this as an exam question it is the wrong answer
How does the UCC justify having requirements and output contracts be valid offers?
Because of the implication a good faith