Is the offer revocable?
Is there a valid offer?
Yes
- Essential terms
(price, #) defined
- Reasonably
shows only assent
is req. for K (§24)
- Invites ACPT
- Uni. K = promise
of future prfrm IFF
actual prfrm
No
- Ad (unless bait &
switch; Izadi)
- Not directed to a
specific person
- Preliminary neg.
- Invitation to offer
- "Agrmt to agree"
Yes
Yes
No
C.O. = New Offer
- Conditional acceptance
(Normile)
- Additional terms
- Explicit Counter-offer
No
Does
offeror
want to
revoke?
Yes
- Death bf ACPT
- No ACPT w/n
reasonable time
- Prfm. impossible
- Illegal
- Incapacity
Yes
No
No
Yes
No
Did offeree accept?
Yes
Check
Was it properly
revoked?
- Communicated to
offeree (directly or
indirectly) before
ACPT
Do essential terms
of acceptance
match ?
(Mirror-image rule)
No
Offeree
wants to
accept
old offer
NO K
No
- Option w/ CDRN
- Offeree detrmnt.
relied on offer
- Offeree prfmd.
- Offeree ACPT
- Offeree mailed
Timely and specific
(reasonable) ACPT
Is there another type
of compensation
available?
- Promissory estoppel
- Unjust enrichment
- Restitution claim
Mutual
Assent
Yes
No
"Agreement to agree"
w/o def. terms
+ consideration
Substantial prfrmce
Silence (UNLESS
for uni. K (Cook rule) custom of silent acpt)
Beginning prfrmce
for uni. K (§45)
Performance w/o
knowledge of offer
Enforceable
K
If offer doesn't
specify, any rsnble
method is OK
No reasonable notice
of terms & conditions
in browsewrap agrmt
+ mutual assent
Keep benefit after
No reasonable notice
resnble opp. to object w/ shrinkwrap agrmt
No
No
Valid
Consideration
Valid Detriment/Benefit?
detriment to promisee OR benefit to promisor
YES
NO
"Forbearance" of legal right Past performance or moral
(Hamer v. Sidway)
obligation
Action/Promise for action
Yes
Incidental detriment
Bargained/Exchanged for Gratuity (gift)
No
Post-agreement
addition to
contract
Was the
detriment
reciprocally
induced? (§71)
Yes
Yes
Is the
consideration
equitable?
Yes
No
***UNLESS, "gross
inadequacy as to shock
the conscience"
(Dohrmann)
No
Addition
acceptd by
other party?
***Shrinkwrap agreements
Majority view: seller ships = offer,
customer retains = ACPT of seller's
T&C. If only one written form, §2-204
applies, not §2-207
Minority view: purchase order = offer,
ACPT of $ = ACPT, seller confirmation =
acceptance w/ additional terms. Since
not 2 merchants, add. terms fall out
Yes
New, separate
consideration to
support
addition?
Key things to distinguish
1) Bilateral or unilateral
2) If additional terms, are they
different enought to be a C.O.?
3) If between family members,
check carefully if it is a gift
4) If internet, is clickwrap,
browsewrap, or shrinkwrap
agreement present?
Standard Acceptance
Does the
transaction fall
within the UCC?
Sale of Goods
UCC
Applicable
Mixed
Transaction
Battle of the Forms (§2-207)
Predominate Purpose Test
Princess Cruises v. Coakley:
1) Language of the K
2) Type of business of supplier
3) Relative worth of materials
vs. services provided (which one
was incidental)
Jannusch - look at the "thrust" of
the agreement to see if it is
directed more (i.e. > 50%)
towards goods or services
Primarily
Goods
Primarily Goods
+ Add/Diff Terms
K in Writing
K not in Writing
Acceptance within
reasonable or
specified time?
Conduct by both
parties sufficient to
recognize contract?
No
Primarily
Services
Yes
UCC
Not
Applicable
Primarily
Goods
Contract terms
1) agreed in writing
2) mutually conflicting
= imputed objection;
"knocked out"
3) supplementary
terms (pg. 397)
No
No
Between
merchants?
Yes
Is there a valid offer?
1) Default to common law rules
since UCC does not specify
2) Only the quantity MUST be
specified
3) Brown Machine - purchase
order is offer, not the price quote
from seller
Yes
Yes
Is there a firm (exclusive) offer?
1) Offer by merchant in signed writing
"giving assurance it will be held open"
2) Not revocable (even w/o consdrtn)
for more than 3 months UNLESS
separate form specifying term is
signed by the offeror
Yes
Is there acceptance?
1) Any manner showing acceptance,
including conduct and silence (IFF custom of
parties in the past) - §2-204(1)
2) Moment of making not req. - §2-204(2)
3) 1+ open terms OK if "reasonably certain"
basis for remedy - §2-204(3)
4) Any manner and reasonable medium
unless "unambiguously specified" otherwise
5) Shipment or promise to ship in response
to purchase order UNLESS non-conforming
goods are sent as an accommodation to the
buyer rather than to satisfy K
Add. terms are
proposals for
incorporation
No
No K
Yes
Acceptance expressly
conditional on assent
to add/diff terms?
ONLY if
silent, after
rsnble time
--> assume
inclusion of
add. terms
No
Terms added UNLESS:
(1) offer expressly limits
acceptance to offer terms
(2) material alterations
(3) objection given w/n
reasonable time
Is the K within the Statute?
1) sale of real estate
2) not to be performed within
one year
- excluding breach
- express provision of K
Yes
No
Is the statute
satisfied?
1) written statement
of terms
2) signed by ?
No
Any exceptions?
1) part performance
2) parol evidence
can be used to
satisfy ? signature if
they agree on terms
with contract doc
Yes
? can proceed to
prove her contract
Trial
Yes
? wins