The Offer
Contracts - Merges
2.7.2011
Owen v. Tunison
Two-Day Trophy Tour Draws Thousands
Across Maine
LEWISTON, Maine -- The Red Sox World Series trophy's
two-day tour through Maine is now over after thousands
of people showed up across the state to get a glimpse of
baseball's top prize.
The trophy was brought out yesterday in Presque Isle,
Bangor, Augusta, Lewiston, Bethel and at Sunday River
ski resort in Newry. On Friday, the trophy was paraded in
Portland.
In Lewiston, 90-year-old Virginia Tardif of Lisbon Falls was
one of the first in line to view the trophy at the Colisee.
She was just four years old when the Sox last won the
series, but has remained true to the team for all these
years . . .
Owen v. Tunison
• Procedural history
Owen v. Tunison
• Procedural history
• It is apparently the first appeal
– “reported to the law court”
– “from the record it appears . . .”
Owen
• The π buyer (O); Δ seller (T)
• What is π’s cause of action?
Owen
• The π buyer (O); Δ seller (T)
• What is π’s cause of action?
• What remedy does π seek?
– Unusually, damages rather than SP
Owen
• The π buyer; Δ seller
• What is π’s cause of action?
“Granted [there may be a K] . . . after the
[owner] has made an offer in writing to
sell to the [buyer], and such offer has
been so accepted . . . .” – Bottom p. 127
The communications
1. 10/23/29:
O letter to T
2. 11/12/29:
T letter to O
3. 12/6/29:
O letter/telegraph to T
Labeling the communications:
for π buyer
1. 10/23/29:
O letter to T
2. 11/12/29:
T letter to O
3. 12/6/29:
O letter/telegraph to T
Labeling the communications:
for Δ seller
1. 10/23/29:
O letter to T
2. 11/12/29:
T letter to O
3. 12/6/29:
O letter/telegraph to T
The key language in T’s 11/12
Letter
“it would not be possible for
me to sell it unless I was to
receive $16,000 cash”
What does the court say
about this?
What does the court say
about this?
• “It cannot be successfully
argued that Δ made any
offer . . . .”
• P. 128
Why not?
• Legally, what is an offer?
Offer
• A statement that indicates to the other
party that the other party has the power
to “close the K”
• P. 128, Note
Labeling the communications
1. 10/23/29: O letter to T
Offer ?
2. 11/12/29:
T letter to O
3. 12/6/29:
O letter/telegraph to T
Labeling the communications
1. 10/23/29:
O letter to T
2. 11/12/29: T letter to O
Counteroffer ?
3. 12/6/29:
O letter/telegraph to T
Labeling the communications
1. 10/23/29:
O letter to T
2. 11/12/29:
T letter to O
3. 12/6/29:
O letter/telegraph to T
“Purported acceptance”
Redraft exercise
• So π wins:
• So Δ wins:
Redraft exercise
• So π wins: “I will sell for $16,000.”
• So Δ wins: “I will not entertain an offer
for less than $16,000.”
• Southworth v. Oliver – Problem, p. 132
• Southworth v. Oliver – Problem, p. 132
– More terms?
– Previous communications? – context
– Multiple Recipients: why not an offer?
Harvey v. Facey
• Communications
• Legal Characterizations
Harvey v. Facey
Legal Characterizations
– Harvey telegraph: (1) will you sell; (2)
telegraph lowest cash price
– Facey response: “Lowest price £ 900”
– Harvey reply: “We accept”
What was agreed on?
• At most, the price; not the fact of an
offer
• So nothing to accept
• “everything else is left
open”
Fairmount Glass v. CrundenMartin
James Byron Dean, son of a
dental technician and a
farmer's daughter, Winton A.
and Mildred Wilson Dean,
was born February 8, 1931.
Mr. and Mrs. Dean, with their
young son, moved to
Fairmount shortly after his
birth
Fairmount Glass v. CrundenMartin
• Appellee – π – buyer
• Appellant – Δ – seller
Communications
1. 4/20 Letter C-M (Buyer) to F (Seller)
2. 4/23 Letter F (Seller) to C-M (Buyer)
3. 4/24 Letter C-M (Buyer) to F (Seller)
Communications
1. 4/20 Letter C-M (Buyer) to F (Seller)
“Please advise the lowest price . . .” –
invitation for an offer
2. 4/23 Letter F (Seller) to C-M (Buyer)
3. 4/24 Letter C-M (Buyer) to F (Seller)
Communications
1. 4/20 Letter C-M (Buyer) to F (Seller)
2. 4/23 Letter F (Seller) to C-M (Buyer)
“We quote you . . .”
3. 4/24 Letter C-M (Buyer) to F (Seller)
Communications
1. 4/20 Letter C-M (Buyer) to F (Seller)
2. 4/23 Letter F (Seller) to C-M (Buyer)
3. 4/24 Letter C-M (Buyer) to F (Seller)
“Enter order 10 carloads as per your
quotation”
Specificity of Terms
• 4/23 letter F to C-M
– Quantity term?
• Cf. Moulton v. Kershaw, p. 133 n. 2.
Holding
• “We quote you” – in this case, this was
an offer
• CONTEXT is key – p. 132
Additional terms?
• “Jars and caps to be strictly firstquality goods”
• “I offer you $3000 for your 1985 Toyota
Celica.”
• “I accept, if you throw in your used
Fender guitar”
Lefkowitz v. Great Minneapolis
Surplus Store
Fitzgerald Theater,
St. Paul Minnesota
Lefkowitz
• What is the “general rule” regarding
advertisements?
• Why?
Lefkowitz
• Facts
Reconciling Lefkowitz with the “general
rule” re: ads
Reconciling Lefkowitz with the “general
rule” re: ads
The problem of unlimited acceptance is
solved in Lefkowitz – by the “first
come, first served” term
-- compare Moulton v. Kershaw, p. 133.
Lefkowitz
• Facts
• “House rule” – for women only
Lefkowitz
• Facts
• When did Lefkowitz ACCEPT the
store’s offer?
The “House rule”
• Did court get it wrong?
– Cannot accept an offer not aimed at you
• Isn’t this discrimination?
– Compare employment and housing