Mutual Assent/Offer & Acceptance
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Restatement 2nd Contracts § 22 – Mode of Assent: Offer andAcceptance
- 1. The manifestation of
- mutual assent is to an exchange ordinarily takes the form of an offer or
- proposal by one party followed by an acceptance by the other party or parties.
- 2. A manifestation of
- mutual assent may be made even though neither offer nor acceptance can be
- identified and even though the moment of formation cannot be determined.
What do the rules of offer and acceptance tell us?
- When and how the promises, initially contemplated, discussed, or negotiated,
- become effective. They tell us how and when the consideration has been given.
- An agreement or "meeting of the minds" on the terms of the deal determined under OTK – What would a reasonable person in the position of each party believe based on the other
- party’s words and conduct regardless of intent
What must be shown in order to prove that a communication (or series of
communication) equals an offer?
(1) Communication to an identified party(the offerree(s)
(2) Manifestation of intention to be bound as evidenced through words (spoken or written) and actions in context.
(3) Reasonable certainty (R 2nd § 33)
Restatement 2nd Contracts §24 – Offer Defined
- An offer is the manifestation of willingness to enter into a bargain, so made as to justify
- another person in understanding that his assent to that bargain is invited and
- will conclude it.
What constitutes an offer?
(1) A promise
- (2) demonstrated by words or conduct
- that indicate a condition to be bound, and
- (3) is directed at some person or
An offer must either indirectly or directly:
(1) Be communicated - words or conduct
(2) Indicate a desire to enter into a contract. –indicate a condition to be bound
- (3) Be directed at some
- person or persons. – identifies an offeree
- (3) Invite acceptance. - Create a
- reasonable understanding that upon acceptance a contract will arise.
What is the objective theory of contracts (OTK)?
- What a reasonably situated person believe under the circumstance. OTK is applied to determine whether a particular
- communication constitutes an offer
As a general rule, what types of communications are not offers?
(1) price quotes
(2) general public advertisements
What are the consequences of making an offer?
An offer vests in the identified recipient the power of acceptance.
What is the impact of "intent to memorialize?"
"Intent to memorialize" is a preliminary agreement in which the parties, after orally expressing an agreement on a deal also agree to memorialize their agreement in a more formal writing. (R 2nd §§ 26-27) (Ciarmella v. RDA)
Ways to Terminate an Offer
- (1) Rejection
- (2) Revocation
- (3) Lapse
- (4) Death or Incapacity
Termination of an Offer: Rejection
Rejection occurs when the offeree declines the offer. Rejection is absolute.
Termination of an Offer: Revocation
Derived from the 1st principle of freedom of contract; an offeror retains complete mastery and control over her offer until acceptance
The Offeror is King
Termination of an Offer: Indirect Revocation
The offeror withdraws her offer by notifying the offeree of her revocation.
An indirect revocation occurs when the offeree learns from someone other than the offeror that the offeror is no longer interested in the deal.
Dickinson v. Dodds
Termination of an Offer: Lapse
An offer lasts as long as the offeror says it will las for - assuming it is not earlier terminated by rejection or revocation. An offer for an unstated period remains open for a reasonable time (depending on facts and circumstances).
Termination of an Offer: Death of Incapacity
If the offeror dies or is adjudicated as incompetent, then the offer terminates automatically and w/o regard to whether the offeree was notified or aware of the death or incapacity.
Articulate the Rules of Mutual Assent
Mutual assent is a manifestation of intention to be bound, demonstrated by an agreement on the terms of the deal determined under OTK, and is generally comprised of an offer and an acceptance.
Objective Theory of Contracts: Would a similarly situated person reasonably believe that there was an offer
An acceptance is a voluntary act of the offeree whereby she exercises the power conferred on her by the offeror; a manifestation of assent to the terms
Acceptance by Performance
A manifestation of assent to the terms thereof made b the offeree in a manner invited or required by the offeror.
Additional Terms in Acceptance or Confirmation
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