1 George Mason School of Law Contracts I XI.Irrevocable Offers F.H. Buckley

The shape of things to come  Consideration barriers cleave off some kinds of unenforceable contracts, but other promises which lack consideration are nevertheless enforceable 2

The shape of things to come  Promissory Estoppel  Option Contracts  Relational Contracts Agreements to Agree Preliminary Agreements Indefiniteness Output Contracts Requirement Contracts Distributorships, Franchises 3

Irrevocable Offers  The consideration requirement amounts to a presumption against irrevocable offers Why does this make sense? 4

Irrevocable Offers  Gold is now trading at $1300/oz. Would you pay for the right to buy gold for $2000/oz. in a year’s time? 5

Irrevocable Offers  Gold is now trading at $1300/oz. Would you pay for the right to buy gold for $2000/oz. in a year’s time?  Is there a positive probability p that the price of gold will be $X, where X > $2000/oz.?  V option = p($X – 2,000) 6

Irrevocable Offers  What purposes are served by option contacts? 7

Irrevocable Offers  What purposes are served by option contacts?  Hedging strategies to diversify risk 8

Irrevocable Offers  What purposes are served by option contacts?  Compensation schemes for executives (pay for performance) 9

Irrevocable Offers  What purposes are served by option contacts?  Land assembly and hold-outs 10

Hold outs: 433 Mass Ave. NW 11

Irrevocable Offers 12  So what about options supported by consideration? What if I pay for the option to buy gold at $2,000/oz. in a year?

Irrevocable Offers 13  So what about options supported by consideration?  Restatement § 25. An option contract is a promise which meets the requirements for the formation of a contract and limits the promisor's power to revoke an offer.

Irrevocable Offers  When would it make sense to hold an offer irrevocable in the absence of consideration? 14

Irrevocable Offers  When would it make sense to hold an offer irrevocable in the absence of consideration?  Pre-contractual reliance expenditures  Firm Offers 15

Reliance Expenditures  The Brooklyn Bridge example: p

Reliance Expenditures  In a unilateral contract, offeree does not have to communicate acceptance, only to begin performance  Carlill v. Carbolic Smoke Ball  Restatement § 54(1) 17

Reliance Expenditures  Revocation not effective after full performance of unilateral contract  St. Peter  Lefkowitz 18

Reliance Expenditures  But what about part performance?  Easy loss of revocation rights? Ever-Tite  Acceptance: Restatement § 62(1)  Option Contract: Restatement §§ 45(1), 87(2) 19

Acceptance: Restatement § 62(1) 20  Where an offer invites an offeree to choose between acceptance by promise and acceptance by performance, the tender or beginning of the invited performance or a tender of a beginning of it is an acceptance by performance.

Option Contract: Restatement § 45(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. 21

Option Contract: Restatement § 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. 22

What does § 45(1) add to 87(2)?  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. 23

What does § 87(2) add to § 45(1)?  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. 24

What is the remedy?  Cf. Restatement § 87, Comment e “Full scale enforcement is not necessarily appropriate.” 25

Firm Offers  What about cases where there is neither consideration nor reliance? 26

Firm Offers 27  Restatement § 87(1)(a) An offer is binding as an option contract if it is in writing and signed by the offeror, recites a purported consideration for the making of the offer, and proposes an exchange on fair terms within a reasonable time.

Firm Offers 28  Restatement § 87(1)(a) An offer is binding as an option contract if it is in writing and signed by the offeror, recites a purported consideration for the making of the offer, and proposes an exchange on fair terms within a reasonable time. What would a “purported consideration” look like?  Cf. Restatement comments

Firm Offers under the UCC  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. 29

Compare to the Restatement 30  Restatement § 87(1)(a) An offer is binding as an option contract if it is in writing and signed by the offeror, recites a purported consideration for the making of the offer, and proposes an exchange on fair terms within a reasonable time.

Firm Offers under the UCC  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. 31

Firm offers: Construction Contracts Client General Contractor Sub-contractor 32

Pavel v. Johnson p. 236: Building 30 33

Pavel v. Johnson p. 234 NIH PEI (Pavel/HVAC) Johnson (Kick) 34 Was this an Article 2 transaction?

Pavel v. Johnson  Aug. 5: Subcontractor Johnson submits a $898K bid for the HVAC work  Aug. 26: Contractor Pavel asks Johnson for fresh bid breaking out Powers project 35

Pavel v. Johnson  Aug. 5: Subcontractor Johnson bids  Aug. 26: Contractor Pavel asks Johnson for fresh bid breaking out Powers project  Sept. 1: Pavel “accepts” Johnson’s bid  Sept. 1: Johnson notes an error and seeks to withdraw bid 36

Pavel v. Johnson  Aug. 5: Subcontractor Johnson bids  Aug. 26: Contractor Pavel asks Johnson for fresh bid breaking out Powers project  Sept. 1: Pavel “accepts” Johnson’s bid  Sept. 1: Johnson notes an error and seeks to withdraw bid  Sept. 28: NIH awards contract to Pavel  Subsequently Pavel finds a substitute subcontractor 37

Pavel v. Johnson  Was there a contract between Pavel and Johnson? 38

Pavel v. Johnson  Should subcontractors be held to have made an irrevocable offer? 39

Pavel v. Johnson  Should subcontractors be held to have made an irrevocable offer? Baird v. Gimbel (Learned Hand) Drennan v. Star Paving (Trainor) 40

Pavel v. Johnson  Should subcontractors be held to have made an irrevocable offer? When might this be unfair to the subcontractor? 41

Pavel v. Johnson  Should subcontractors be held to have made an irrevocable offer? When might this be unfair to the subcontractor?  The contractor shops around?  Lapse of time and absence of notice to subcontractor  Extremely low bid by subcontractor 42

Pavel v. Johnson  On the facts of this case, should the subcontractor be permitted to revoke the bid? 43

Pavel v. Johnson  On the facts of this case, should the subcontractor be permitted to revoke the bid? Did Pavel shop around? 44

Pavel v. Johnson  On the facts of this case, should the subcontractor be permitted to revoke the bid? Did Pavel shop around? Subcontractor took some time to revoke 45

Pavel v. Johnson  On the facts of this case, should the subcontractor be permitted to revoke the bid? Did Pavel shop around? Subcontractor took some time to revoke Counteroffer by contractor 46

Pavel v. Johnson  On the facts of this case, should the subcontractor be permitted to revoke the bid? Which party is in the best position to assume the risk that the contractor will find a cheaper subcontractor? 47