George Mason School of Law Contracts I G. Revocation and Rejection, Counter-offers, the UCC F.H. Buckley fbuckley@gmu.edu

Offer and Acceptance solves the Coordination Problem But what if they want to back out?

Revocation of Offer Restatement § 36(1). An offeree’s power of acceptance may be terminated by (c) revocation by the offeror

Revocation Offeror mails offer to offeree on Sept. 1

Revocation Offeror mails offer to offeree on Sept. 1 Offeree receives offer on Sept. 10 and sends letter accepting the offer the same day.

Revocation Offeror mails offer to offeree on Sept. 1 Offeree receives offer on Sept. 10 and sends letter accepting the offer the same day. Offeror telephones on Sept. 9 to revoke the offer.

Revocation Offeror mails offer to offeree on Sept. 1 Offeree receives offer on Sept. 10 and sends letter accepting the offer the same day. Offeror telephones on Sept. 9 to revoke the offer. Is there a contract?

Revocation Restatement § 42. An offeree’s power of acceptance is terminated when the offeree receives from the offeror a manifestation of intent not to enter into the proposed contract.

Revocation Offeror mails offer to offeree on Sept. 1 Offeree receives offer on Sept. 10 and sends letter accepting the offer the same day. Offeror telephones on Sept. 9 to revoke the offer. So no contract

Revocation Offeror mails offer to offeree on Sept. 1 Offeree receives offer on Sept. 10 and sends letter accepting the offer the same day. Offeror mails revocation letter on Sept. 9 which offeree receives on Sept. 12. Is there a contract?

Revocation Restatement § 42. An offeree’s power of acceptance is terminated when the offeree receives from the offeror a manifestation of intent not to enter into the proposed contract.

Revocation Restatement § 42. An offeree’s power of acceptance is terminated when the offeree receives from the offeror a manifestation of intent not to enter into the proposed contract. So a contract

Revocation Restatement § 42. An offeree’s power of acceptance is terminated when the offeree receives from the offeror a manifestation of intent not to enter into the proposed contract. Can you see why we need a reception rule for offeror revocations if we have an emission rule for offeree acceptances?

Rejection by offeree Offeror mails offer to offeree on Sept. 1

Rejection by offeree Offeror mails offer to offeree on Sept. 1 Offeree receives this on Sept. 8 and mails a rejection letter on Sept. 9.

Rejection by offeree Offeror mails offer to offeree on Sept. 1 Offeree receives this on Sept. 8 and mails a rejection letter on Sept. 9. Offeree accepts the offer by phone on Sept. 11.

Rejection by offeree Offeror mails offer to offeree on Sept. 1 Offeree receives this on Sept. 8 and mails a rejection letter on Sept. 9. Offeree changes his mind and accepts the offer by phone on Sept. 11. Offeror receives the rejection letter on Sept. 12. Is there a contract?

Revocation Restatement § 40. Rejection or counter-offer by mail … does not terminate the power of acceptance until received by the offeror… So the phoned-in acceptance is valid

Now… Offeror mails offer to offeree on Sept. 1

Now… Offeror mails offer to offeree on Sept. 1 Offeree mails a rejection letter on Sept. 10.

Now… Offeror mails offer to offeree on Sept. 1 Offeree mails a rejection letter on Sept. 10. Offeree changes his mind and mails an acceptance on Sept. 11.

Now… Offeror mails offer to offeree on Sept. 1 Offeree mails a rejection letter on Sept. 10. Offeree mails acceptance on Sept. 11. Offeror receives the rejection letter on Sept. 12 and the acceptance letter on Sept. 13. Is there a contract?

Revocation Restatement § 40. Rejection or counter-offer by mail … does not terminate the power of acceptance until received by the offeror… §63. Unless the offer provides otherwise…an acceptance made in a manner and by a medium invited by an offer is operative and completes the manifestation of mutual assent as soon as put out of the offeree's possession…

Revocation Restatement § 40. Rejection or counter-offer by mail … does not terminate the power of acceptance until received by the offeror… §63. Unless the offer provides otherwise…an acceptance made in a manner and by a medium invited by an offer is operative and completes the manifestation of mutual assent as soon as put out of the offeree's possession… So you’d think there was a contract…

But not so fast Restatement § 40. Rejection or counter-offer by mail … does not terminate the power of acceptance until received by the offeror, but limits the power so that a letter or telegram of acceptance started after the sending of an otherwise effective rejection or counter-offer is only a counter-offer unless the acceptance is received by the offeror before he receives the rejection or counter-offer. So which is received first: the rejection or the acceptance letter?

Revocation So which is received first: the rejection or the acceptance letter? The message to the offeree who rejects and then changes his mind: Accept promptly by phone.

Silence as acceptance I leave my car at your house with a note that I will consider you to have bought it at $5,000 unless within a week you call me to tell me that you have rejected it. You fail to do so. Is there a sale?

Silence as acceptance I leave my car at your house with a note that I will consider you to have bought it at $5,000 unless within a week you call me to tell me that you have rejected it. You fail to do so. Is there a sale? What if you take the car for a spin once? A dozen times?

Restatement §69. ACCEPTANCE BY SILENCE OR EXERCISE OF DOMINION (1) Where an offeree fails to reply to an offer, his silence and inaction operate as an acceptance in the following cases only: (a) Where an offeree takes the benefit of offered services with reasonable opportunity to reject them and reason to know that they were offered with the expectation of compensation.

Revocation: Unilateral Contracts The Brooklyn Bridge example on p. 233. Offeror terminates when offeree is halfway across the bridge.

Revocation: Unilateral Contracts Restatement § 36(1). An offeree’s power of acceptance may be terminated by (a) rejection or counter-offer by the offeree.

Revocation: Unilateral Contracts Restatement § 45. Option Contract Created by Part Performance or Tender. (1) Where an offer invites an offeree to accept by rendering a performance and does not invite a promissory acceptance, an option contract is created when the offeree tenders or begins the invited performance or tenders a beginning of it.

Revocation: Unilateral Contracts Restatement § 45. Option Contract Created by Part Performance or Tender. (1) Where an offer invites an offeree to accept by rendering a performance and does not invite a promissory acceptance, an option contract is created when the offeree tenders or begins the invited performance or tenders a beginning of it. What if the offeree changes his mind half-way across the bridge?

Acceptance vs. Counter-offer

Acceptance vs. Counter-offer Wholesaler offeror offers retailer offeree “a dozen 22 inch clay pots for $300.” Offeree emails back “Great. I’ll take three dozen.” Is there a contract?

Acceptance vs. Counter-offer §39. COUNTER-OFFERS. (1) A counter-offer is an offer made by an offeree to his offeror relating to the same matter as the original offer and proposing a substituted bargain differing from that proposed by the original offer. (2) An offeree's power of acceptance is terminated by his making of a counter-offer, unless the offeror has manifested a contrary intention or unless the counter-offer manifests a contrary intention of the offeree.

The “Mirror Image Rule” §59. PURPORTED ACCEPTANCE WHICH ADDS QUALIFICATIONS. A reply to an offer which purports to accept it but is conditional on the offeror's assent to terms additional to or different from those offered is not an acceptance but is a counter-offer.

Acceptance vs. Counter-offer Wholesaler offeror offers retailer offeree “a dozen 22 inch clay pots for $300.” Offeree emails back “Great. I’ll take three dozen.” Not having heard from wholesaler, retailer emails back “OK, I’ll take a dozen.” Is there a contract?

Acceptance vs. Counter-offer Restatement § 36. Methods of Termination of the Power of Acceptance (1) An offeree’s power of acceptance may be terminated by (a) rejection or counter-offer by the offeree

Counteroffers: Dataserv Equipment at 247

Counteroffers: Dataserv Equipment at 247 Dataserv (seller) InDepth Technology (buyer)

Counteroffer as Rejection: Dataserv Equipment Why was Technology’s response a counter-offer?

Counteroffer as Rejection: Dataserv Equipment Why was Technology’s response a counter-offer? Was Dataserv’s response an acceptance of a counteroffer? Any third party installer… The third objectionable clause

Counteroffer as Rejection: Dataserv Equipment If Dataserv didn’t accept the counteroffer, could it go back and accept it later?

Counteroffer as Rejection: Dataserv Equipment Restatement § 38(1). A party’s rejection terminates its power of acceptance. Once rejected an offer is terminated and cannot be accepted without ratification by the other party.

Acceptance vs. Counter-offer Wholesaler offeror offers retailer offeree “a dozen 22 inch clay pots for $300.” Offeree emails back “Great. I’ll take a dozen but I’d really be much happier if you could send me three dozen.”

Acceptance vs. Counter-offer § 61. Acceptance Which Requests Change of Terms. An acceptance which requests a change or addition to the terms of the offer is not thereby invalidated unless the acceptance is made to depend on an assent to the changed or added terms.

The Battle of the Forms Why might this be a problem?

The Battle of the Forms “The sender of the last form … could insert virtually any conditions it chooses into the contract” (254) Ionics

At Common Law What happens at common law where: There is performance and indisputably a contract There has been a “Battle of the Forms”

The “Mirror Image Rule” at common law §59. PURPORTED ACCEPTANCE WHICH ADDS QUALIFICATIONS. A reply to an offer which purports to accept it but is conditional on the offeror's assent to terms additional to or different from those offered is not an acceptance but is a counter-offer.

The “Mirror Image Rule” Restatement § 36. Methods of Termination of the Power of Acceptance (1) An offeree’s power of acceptance may be terminated by (a) rejection or counter-offer by the offeree

The Last Shot Doctrine The Last Shot Doctrine as a corollary of the mirror image rule The last document to be sent was a counter-offer, and since there was a contract it’s terms are deemed to constitute the contract

How is the Last Shot doctrine changed by the “infamous” UCC § 2-207?

Ionics at 250 Was there a battle of the forms? If so, was this between merchants? And what was the dispute?

Ionics at 250 Elmwood: (2) acknowledgment form thermostats Ionics: (1) purchase order form

Ionics at 250 Applying the last shot doctrine, what is the contract? And who wins as to implied terms? Acknowledgment Form cl. 9 UCC 2-314: a warranty that the goods shall be merchantable … if the seller is a merchant with respect to goods of that kind

Ionics at 250 What is the purpose of UCC § 2-207(1)?

Ionics at 250 What is the purpose of UCC § 2-207(1)? One wouldn’t need it if one were happy with the last shot doctrine

Ionics at 250 How would you apply UCC § 2-207(1) (before the comma) to Ionics? UCC § 2-207 (1) A definite and seasonable expression of acceptance or a written confirmation which is sent within a reasonable time operates as an acceptance even though it states terms additional to or different from those offered or agreed upon

Ionics at 250 Who would win as to implied terms? UCC § 2-207 (1) A definite and seasonable expression of acceptance or a written confirmation which is sent within a reasonable time operates as an acceptance even though it states terms additional to or different from those offered or agreed upon So Ionics would win?

Ionics at 250 What about the proviso? UCC § 2-207(1) A definite and seasonable expression of acceptance or a written confirmation which is sent within a reasonable time operates as an acceptance even though it states terms additional to or different from those offered or agreed upon, unless acceptance is expressly made conditional on assent to the additional or different terms.

Ionics at 250 UCC § 2-207(1) A definite and seasonable expression of acceptance or a written confirmation which is sent within a reasonable time operates as an acceptance even though it states terms additional to or different from those offered or agreed upon, unless acceptance is expressly made conditional on assent to the additional or different terms. Does Elmwood’s Acknowledgement oust 2-207(1)?

Ionics at 250 In similar circumstances, how did Roto-Lith end up applying the Last Shot doctrine?

What happens then? UCC § 2-207(1) A definite and seasonable expression of acceptance or a written confirmation which is sent within a reasonable time operates as an acceptance even though it states terms additional to or different from those offered or agreed upon, unless acceptance is expressly made conditional on assent to the additional or different terms. Roto-Lith: if the proviso applies, 2-207 is ousted and we’re back in the common law and the last shot doctrine (Elmwood wins)

Ionics at 250 If Ionics rejects Roto-Lith, could 2-207(2) be helpful? The additional terms are to be construed as proposals for addition to the contract. Between merchants such terms become part of the contract unless:

Ionics at 250 If Ionics rejects Roto-Lith, could 2-207(2) be helpful? The additional terms are to be construed as proposals for addition to the contract. Between merchants such terms become part of the contract unless: (a) the offer expressly limits acceptance to the terms of the offer; Cf. clause 19 of Ionics Order

Ionics at 250 If Ionics rejects Roto-Lith, could 2-207(2) be helpful? (b) they materially alter it; Was that the case in Ionics?

Ionics at 250 If Ionics rejects Roto-Lith, could 2-207(2) be helpful? The additional terms are to be construed as proposals for addition to the contract. Between merchants such terms become part of the contract unless: (c) notification of objection to them has already been given or is given within a reasonable time after notice of them is received.

Ionics at 250 If Ionics rejects Roto-Lith, could 2-207(2) be helpful? (c) notification of objection to them has already been given or is given within a reasonable time after notice of them is received. Was that the case in Ionics? Clause 19

Ionics at 250 So what happens when 2-207(1) and 2-207(2) are both ousted?

Ionics at 250 Two possibilities: So what happens when 2-207(1) and 2-207(2) are both ousted? Two possibilities: There is “conduct by both parties which recognizes the existence of a contract” in 2-207(3) Or there isn’t

Ionics at 250 Two possibilities: So what happens when 2-207(1) and 2-207(2) are both ousted? Two possibilities: There is “conduct by both parties which recognizes the existence of a contract” in 2-207(3) What happens then?

Ionics at 250 If there is “Conduct by both parties which recognizes the existence of a contract is sufficient to establish a contract for sale” UCC 2-207(3) In such case the terms of the particular contract consist of those terms on which the writings of the parties agree, together with any supplementary terms incorporated under any other provisions of this Act.

Ionics at 250 In such case the terms of the particular contract consist of those terms on which the writings of the parties agree, together with any supplementary terms incorporated under any other provisions of this Act. And what would this be? See Comment 6 at 253

Step-Saver at 260 Is this a contract between merchants?

Step-Saver at 260 Wyse/TSL Mainframe hardware plus MS software Step-Saver (retailer)

Step-Saver at 260 Wyse/TSL Box top license disclaims warranties Step-Saver (retailer)

Shrink-rap Contracts Was this a battle of the forms?

Shrink-rap Contracts Was this a battle of the forms? Purchase order from Step-Saver followed by box-top contact from manufacturer

Shrink-rap Contracts What did the District Court hold?

Shrink-rap Contracts The District Court: The box-top license as the crucial Last Shot offer

Shrink-rap Contracts How did the Circuit Court interpret 2-207(1)?

Step-Saver UCC § 2-207(1) A definite and seasonable expression of acceptance or a written confirmation which is sent within a reasonable time operates as an acceptance even though it states terms additional to or different from those offered or agreed upon, unless acceptance is expressly made conditional on assent to the additional or different terms.

Shrink-rap Contracts Is that what Step-Saver did? Offeree did not demonstrate an unwillingness to proceed unless the additional terms are included

Shrink-rap Contracts Am I missing something here? Clause 5: “Opening this package indicates your acceptance of these terms and conditions. If you do not agree with them you should promptly return the package unopened”?

Shrink-rap Contracts Is that what Step-Saver did? Offeree did not demonstrate an unwillingness to proceed unless the additional terms are included So 2-207(1) is ousted. But then 2-207(2) is also ousted because of the material differences between the parties

Hill v. Gateway at 267

Hill v. Gateway Was this between merchants? 2-207(2) The additional terms are to be construed as proposals for addition to the contract. Between merchants such terms become part of the contract unless:

Hill v. Gateway What is RICO?

Hill v. Gateway How was the arbitration clause an issue? Federal Arbitration Act and federal pre-emption

Hill v. Gateway Why did Easterbrook say that the parties were bound to the shrink wrap license?

If no battle of the forms, is 2-207(1) ousted? UCC 2-207(1) A definite and seasonable expression of acceptance or a written confirmation which is sent within a reasonable time operates as an acceptance even though it states terms additional to or different from those offered or agreed upon, unless acceptance is expressly made conditional on assent to the additional or different terms.