1 George Mason School of Law Contracts I VI. Acceptance F.H. Buckley

Shrink-rap Contracts What if the court had held that the seller had satisfied the 2-207(1) proviso? The second approach: note 24 2

Last day 3 Executory vs. executed contracts Offers to the world: unilateral contracts Offers vs. Invitations to treat Offers vs. mere puffs

Formation as a coordination game 4 PromiseNo Promise Promise10, 10-10, 0 No Promise0, -100, 0 Player 1 Player 2

Promissory Accidents 5 Type I: Promisors are found to promise when they really didnt intend to do so (false positive) Lucy v Zehmer? Type II: Promisors are not found to promise where they intended to do so (true negative) Leonard v. Pepsico

A solution Devise rules of offer and acceptance such that both parties are able to recognize whether a binding contract exists 6

A solution And then impose liability (non- liability) on the party most at fault The Objective Standard Rules about communication of offers and acceptances 7

Acceptances What constitutes an acceptance? When and how could an offeror revoke an offer When an how could an offeree revoke an acceptance? 8

Rights and Powers Restatement § 35. An offer gives to the offeree an continuing power to accept the offer or not, as he chooses. If he accepts, both parties have the right to the others performance, and the duty to perform 9

What constitutes an acceptance 10 Whatever the offeror wants… Restatement 30(1) An offer may invite or require acceptance to be made by an affirmative answer in words, or by performing or refraining from performing a specified act, or may empower the offeree to make a selection of terms in his acceptance.

Ever-Tite at 217 Was there a contract between the parties on June 10? 11

Ever-Tite Was there a contract between the parties on June 10? What about the signature by Ever-Tite sales rep? Actual and apparent authority 12

Ever-Tite Was there a contract between the parties on June 10? 13

Ever-Tite Was there a contract between the parties on June 10? Who was the offeror and who was the offeree? 14

Ever-Tite Did Ever-Tite commence performance? 15

Ever-Tite What if Green had revoked the day before? 16

Ever-Tite What if Green had revoked the day before? §42. An offeree's power of acceptance is terminated when the offeree receives from the offeror a manifestation of an intention not to enter into the proposed contract. 17

Ever-Tite What if Green had revoked the day before? §42. An offeree's power of acceptance is terminated when the offeree receives from the offeror a manifestation of an intention not to enter into the proposed contract. 18

Ever-Tite Did the offer fail for lapse of time? 19

Ever-Tite Did the offer fail for lapse of time? 41. LAPSE OF TIME. (1) An offeree's power of acceptance is terminated at the time specified in the offer, or, if no time is specified, at the end of a reasonable time. (2) What is a reasonable time is a question of fact, depending on all the circumstances existing when the offer and attempted acceptance are made. 20

Ever-Tite Where did the damages of $311 come from? 21

Restatement § 32 In case of doubt an offer is interpreted as inviting the offeree to accept either by promising to perform what the offer requests or by rendering the performance, as the offeree chooses. Why the bias? 22

The Offeror as the Master of the Form of Acceptance Ciaramella at

Ciaramella at 218 Who made the offer? 24

Ciaramella at 218 Did Eisenberg accept? 25

Ciaramella at 218 Did Eisenberg accept? We have a deal: Whats the argument for treating this as cheap talk? 26

Ciaramella at 218 Did Eisenberg accept? This … Agreement shall not be effective … until it is signed… 27

Ciaramella at 218 Did Eisenberg accept? This … Agreement shall not be effective … until it is signed… Omitted terms? 28

Ciaramella at 218 Did Eisenberg accept? This … Agreement shall not be effective … until it is signed… Omitted terms? Paragraph 13: Whats a merger clause? 29

Preliminary Agreements Can you reconcile Ciaramella with Adjustrite (228)? What are the possibilities under the Leval test? 30

Preliminary Agreements What are the possibilities No agreement Fully enforceable Good faith norms 31

Preliminary Agreements What are the possibilities No agreement Fully enforceable Good faith norms Can the parties bargain around this? 32

Preliminary Agreements Can you reconcile Ciaramella with Adjustrite (227)? Was Ciaramellas signature a mere formality? Were there any Leval good faith duties in Ciaramella? 33

34 George Mason School of Law Contracts I VI.Acceptance II For 2012 Contracts I students only. Not to be shared. F.H. Buckley