2/3/2006Class 121 Class 12, Friday, Feb. 3 Announcements Tuesday Thursday Friday240-54, including Problem 3-4 Today’s agenda Pop’s Cones v. Resorts Int’l Hotel Problem 3-1 Problem 3-2

2/3/2006Class 122 Today is a good day to try to help Professor Chang find a new home for his family’s dog.

2/3/2006Class 123 Tyler mid-size, 40 pounds mutt, looks like a small lab energetic loyal male, neutered

2/3/2006Class versus 87(2)

2/3/2006Class 125 §87 (2)An offer which the offeror should reasonably expect to induce action or forbearance of a substantial character on the part of the offeree before acceptance and which does induce such action or forbearance is binding as an option contract to the extent necessary to avoid injustice.

2/3/2006Class 126 Pop’s Cones, Inc. v. Resorts International Hotel, Inc. 207 N.J. Super. 461, 704 A.2d 1321 (1998)

2/3/2006Class 127 Merv Griffin, entertainer and entrepreneur extraordinaire

2/3/2006Class 128 Who is suing whom? For what kind of damages? What is the legal basis for the claim? What is the factual basis for the claim? Arguments/defenses?

2/3/2006Class 129 What happened at the trial court level? What happened on appeal? Issue? Authorities/Rule? Application to facts in case? What policies does it further/ignore?

2/3/2006Class 1210 Resorts International Hotel Brenda Taube, President Pop’s Cones, franchisee Host Marriott franchisee

2/3/2006Class 1211 Malaker promise must be “clear and definite” “This sort of language might suggest that New Jersey Courts expect proof of most, if not all, of the essential legal elements of a promise before finding it to be ‘clear and definite.’” p.211

2/3/2006Class 1212 Judge v. Jury “Affording plaintiff all favorable inferences, its equitable claim raised a jury question.... Plaintiff’s complaint, therefore, should not have been summarily dismissed.” p. 213, end of opinion

2/3/2006Class 1213 Liability during negotiations

2/3/2006Class 1214 Note 1 Promise?

2/3/2006Class 1215 Note 2 Compare Hoffman and Pop’s Cones with Drennan

2/3/2006Class 1216 Note 3 Sophistication of the parties and outcome

2/3/2006Class 1217 Note 4 Damages Expectation Reliance

2/3/2006Class 1218 Problem 3-1 a discussion will be posted on-line

2/3/2006Class 1219 Problem 3-1 Theory of the case In a suit by the church against the city, what is the main stumbling block going to be?

2/3/2006Class 1220 Main problem for church—revocation by city So in order for the church to win, you must come up with a theory of the case that prevents the revocation from having any effect. How might it be the case?

2/3/2006Class 1221 K—bilateral already formed, in which case city couldn’t revoke option K based on beginning of performance under a unilateral K offer option K based on reliance ALTERNATIVE—promissory estoppel

2/3/2006Class 1222 UCC

2/3/2006Class 1223 UCC An offer by a merchant to buy or sell goods in a signed writing which by its terms gives assurance that it will be held open is not revocable, for lack of consideration, during the time stated or if no time is stated for a reasonable time, but in no event may such period of irrevocability exceed three months; but any such term of assurance on a form supplied by the offeree must be separately signed by the offeror.merchantgoods

2/3/2006Class 1224 Elements?

2/3/2006Class Elements 1.an offer to buy or sell goods; 2.by a merchant; 3.in a signed record; AND 4.which gives assurance that it will remain open IS IRREVOCABLE (even though no consideration) DURATION? Time stated or if none stated, reasonable time; not to exceed 3 months Extra requirement if form is supplied by offeree— firm offer part must be signed separately by offeror

2/3/2006Class 1226 Problem 3-2 Q--As of the time when she receives the above letter, what if any rights does Gale have against Branch? Advice re: course of action? (skip for now the question of if she lived in Ontario, Canada)

2/3/2006Class 1227 Her rights depend on whether an option contract exists and whether she is able to make a timely acceptance.

2/3/2006Class 1228 Offer 1.lang. of commitm ent 2.rel. comp. terms 3.communi cated... The note signed by Wallace Branch constitutes an offer. It has language of commitment (I hereby grant to you.. an option to purchase), is specific as to the subject matter (horse "Tinman), contains relatively complete terms including price, and a limited warranty. It is likely that a reasonable person in the position of Dorothy Gale would believe that her acceptance was invited and would conclude the deal.

2/3/2006Class 1229 Problem/issue identified In mid-September, Dorothy Gale receives a fax from Wallace Branch stating that he has decided to sell Tinman to another buyer. Whether Gale has any rights depends on whether or not this revocation is effective. Even if it is effective, it is possible that she might have a promissory estoppel claim.

2/3/2006Class 1230 Express option

2/3/2006Class 1231 Option via reliance

2/3/2006Class 1232 Firm offer under an offer to buy or sell goods; 2.by a merchant; 3.in a signed writing; AND 4.which gives assurance that it will remain open IS IRREVOCABLE (even though no consideration) DURATION? Time stated or if none stated, reasonable time; not to exceed 3 months Extra requirement if form is supplied by offeree— firm offer part must be signed separately

2/3/2006Class 1233 issue re: form supplied by Gale? issue re: duration?

2/3/2006Class 1234 ADVICE

2/3/2006Class 1235 End of class Tuesday Thursday Friday240-54, incl. Problem 3-4