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C

Definiteness

1

Where statement is clear, definite, explicit, w/ nothing open to negotiation, it is an offer.  (Lefkowitz)

a

But INTENT is determinative

b

Just b/c something is left open doesn’t preclude offer, if omission doesn’t indicate lack of intent AND if ct can FILL IN missing term

III

Termination of offer

A

Offer may be terminated in these ways: lapse, rejection, counter-offer (incl qualified or conditional acceptance), revocation, by operation of law

B

LAPSE

1

Two situations: time stipulated in K, time not stipulated in K

a

Time not stipulated in K:

i

Lapse occurs after r’ble time.  (J.B. Sedberry) (Rest § 41)

b

Time stipulated in K:  (Rest § 41)

i

Lapse occurs after stipulated time

1

If length of time specified, clock gen’y starts upon receipt

a

But if offeree knows/reason offer’s arrival was delayed, clock started when offeree should have received.  (Rest § 49)

2

F2F conversation: offer lapses at end of conversation UNLESS offeror shows contrary intention

C

REJECTION

1

Occurs when offeror is justified in inferring that offeree intends not to accept (includes statement like, “I’ll take it under further advisement”). (J.B. Sedberry)

2

Offer not revived by subsequent acceptance

3

Rejection does not end an OPTION: offeree may COUNTERMAND a rejection of the offer by a subsequent acceptance, if still w/in time allotted

D

COUNTER-OFFER

1

Exists where purported acceptance differs in some MATERIAL respect from the offer through imposition of a new condition — this is a substituted bargain.  (Ardente) (Rest § 39(1)) (Rest § 59)

a

But offeree RELIEVING offeror from a material obligation does NOT vitiate the acceptance

b

And a mere REQUEST added to an acceptance does not vitiate the acceptance.  Same for a COMPLAINT added to an acceptance (guy accepting K “under protest”)

c

“Imposing” an add’l condition that is already an implied condition of the K doesn’t make an offer a counter-offer

i

Ex: “I accept your offer to sell me your house, provided you convey marketable title”

d

Conditional acceptance: this is a counter-offer, that takes the form of an acceptance.  (“I accept your offer, but only if...”) — TERMINATES power of acceptance, just like counter-offer

2

EXCEPTION: offer may be kept alive despite counter-offer through MAGIC WORDS (“I am keeping your offer under advisement...”)

3

Counter-offer does not end an OPTION

4

TEST for counter-offer

a

If counter-offeree could respond “yes” and thus seal the deal, it is a counter-offer

5

RIBBON MATCHING rule / aka MIRROR IMAGE rule

a

Trad’y, acceptance must be exactly identical to offer: even immaterial variations end offer

b

This rule no longer in favor

6

Exs:

a

A offers to sell B land for $5,000, offer open for 30 days

i

Ex 1: B responds w/ $4,800 offer.  A declines.  B now accepts at $5,000.  No K unless A’s response to B’s counter-offer implied an intention to renew orig offer

ii

Ex 2: B replies, “Won’t you take less?”  A says, “No.”  Offer still open: if B accepts at $5,000, K valid

11

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