Unit 1 Deck 2 Flashcards
Inaction or silence construed as an acceptance
generally no because how can inaction or silence be an affirmative manifestation of acceptance to the terms of an offer
DVD buyer’s club contract is an exception
When is the acceptance legaly effective (and thus a contract is formed)?
Common law and UCC rule - when dispatched (sent) postage
Requirements for the dispatch rule to apply
acceptance must be by authorized means of communication
acceptance must be propertly dispatched (address is correct, postage is proper)
Acceptance must be by authorized means of communication:
- restatement (second) and UCC - any reasonable mode under the circumstances will be an authorized means
- same means or a faster means; or a means that is accepted in the industry - does offer require certain means? If so, offer will control method of acceptance and a failure to use the required method will result in no contrat being formed
Offer can control the issue:
Does the offer require receipt?
Does the offer require a certain method?
If so, offer controls
Effect of an unreasonable means of acceptance:
Under the common law the contract formed when the acceptance is received, if the receipt is “timely”
under the UCC, the acceptance is effective when sent if it is in fact received at the same time that an authorized form of acceptance would have been receive - the no harm no foul rule
UCC 2-206 “prompt shipment” contracts
How is offeree (the seller) to accept the offer to buy goods?
By shipping what was ordered (unilateral)
by promising to ship what was ordered (a bilateral contract)
Prompt shipment offer
An offer by a buyer for prompt or immediate shipment by the seller
ex. please ship for immediate delivery
Shipment of conforming (binds) or nonconforming (breaches):
goods can operate as an acceptance
Sellers should give notice (with the shipment, before the shipment, or within a reasonable period of time after shipment):
that nonconforming shipment is an accomondation - otherwise a trap for the unwary seller (shipment is an acceptance, and shipment of nonconforming goods is a breach
Seller must give notice to buyer that goods have been shipped:
within a reasonable period of time after acceptance by shipment of the goods to prevent buyer from purchasing the goods elsewhere believing that the seller was not going to ship
Unless other ambiguously indicated by the language or circumstances:
an offer to make a contract shall be construed as an inviting acceptance in any manner and by any medium reasonable in the circumstances
A shipment of nonconforming goods does not constitute an acceptance if the seller seasonably notifies the buyer that the shipment is offered only as an accomodation to the buyer
Where the beginning of a requested performance is a reasonable mode of acceptance:
an offeror who is not notified of acceptance within a reasonable time may treat the offer as having lapsed before acceptance
Termination of an Offer
Lapse of time (prior to acceptance)
- If offer is silent - after reasonable time offer automatically terminates — what is a reasonable time?
- if offer providesss for duration - offer then controls
- Always control this issue within the terms of the offer to avoid uncertainty and the risk of a dispute
Termination of an Offer
- death or dstruction of subject matter (prior to acceptance)
- death or legal incompetency of offeror or offeree (prior to acceptance)
- superventing illegality (prior to acceptance) - the subject matter/purpose of the contract becomes illegal prior to acceptance
- revocation of offer by offeror (prior to acceptance)
- revocation always possible prior to acceptance by offerree
Exceptions to revocation of offer by offeror
a. option contract - when you are paid to keep an offer open for a specified period of time
b. promissory estoppel
c. UCC 2-205 – firm offers by merchants
UCC 2-205 firm offers by merchants - elements
offers by merchants cant be revoked
- an offer by a merchant )to buy or sell)
- in a writing
- signed by the merchant (signed includes any symbol executed or adopted by a party to authenticate a writing)
- which gives assurance that it will be held open - not enough to simply establish a time by which the offer must be accepted
In no event may such a period of revocability exceed:
3 months
Revocation must be:
communicated and received to be effective (dispatch rules do not apply)
can be express or implied (words or actions)
Rejection by offerree
- must be communicated and received to be effective - can be express or implied
- counteroffer is implied rejection (which terminates original offer)
- changed/added terms (vs continued negotiations)
- conditional acceptance (i accept provided) - Restatement of Contracts exception to the complete-when-posted- doctrine (dispatch rule) - applies when attempted rejection precedes in time attempted acceptance
- situations
Uniform electronic Transactions Act (UETA)
Governs electronic transactions, signatures and related records
Both parties must agree to conduct the transactions by electornic means
transaction must be reduced to a “record”
Sending issues - unless otherwise agreed, an electornic record is sent when:
- is propertly addressed to an information processing system designated by the recipient
- is in a form capable of being procesed by that system
- enters an information processing system outside the control of the sender
*email is sent when the “send” buttom is clicked
An electronic record is received when:
- enters an information processing system designated by the recipient
- is in a form capable of being processed by that system
ex. email does not have to be opend in order for receipt to have occurred
UCITA
A proposed model act intended to address e-commerce - regulate the creation, performance and enforcemet of computer info transactions
