X hits on this document

98 views

0 shares

0 downloads

0 comments

15 / 33

4

Assuming physical control over goods

a

Ex: taking goods you didn’t order from the railroad depot to your store.  (Lay — Lay’s Variety Store)

b

BUT statutory override in many cases: you can treat as gift if sent unfairly

5

Where offeree SOLICITS offer, and offer as drafted by offeree is worded so as to give r’ble impression that silence will be acceptance

a

Cole-McIntyre-Norfleet: traveling salesman drumming up orders (offers) for wheat

b

May apply to insurance application too

6

Late acceptance: if offeree accepts too late, yet still w/in PLAUSIBLE time, and offeror intends to revoke, he must make his intention to revoke known promptly, else objection waived.  (Phillips)

a

In other words, if offeree’s acceptance is too late but not so late that a person couldn’t possibly infer contract, offeror must communicate his intention to revoke promptly

7

Unjust enrichment:  (Day v. Caton) (Polaroid)

a

ELTS:

i

Benefit conferred by P

ii

AND expectation that P would be paid

iii

AND D had reason to know of P’s expectation

iv

AND D would be unjustly enriched

8

Where offeree takes benefit of offered svcs w/o objecting to essential terms.  (Polaroid)

a

This is essentially the UCC rule: where party performs as though K formed.  (UCC § 2-207(3))

Form Contracts

I

Ribbon matching / last shot rule

A

Ribbon-matching: any material diff betw form of offer and acceptance = no K

B

But offer can still be accepted by conduct.  If this happens, but terms of offer and acceptance were different, what are terms of K?

C

Last-shot rule: K formed on terms of last form sent (e.g., seller’s order confirmation w/ terms on back)

D

Ex: seller’s confirmation was a counter-offer based on the buyer’s order, which was an offer.  The buyer’s acceptance of the goods constituted an acceptance of the seller’s counter-offer

II

UCC rule.  (§ 2-207)

A

ELTS:

1

An otherwise valid expression of acceptance is valid

2

EVEN THOUGH it states terms ADD’L to or DIFFERENT from those offered

3

UNLESS acceptance is expressly made conditional on assent to the diff terms

B

This rule may convert what is a common law counter-offer (b/c of add’l / diff terms) into a valid acceptance — if there’s no “expressly conditional” language

III

EXAM APPROACH

A

Acceptance contains diff / add’l terms

B

Common law or UCC?  If common law, no K under ribbon-matching

C

UCC:

1

Merchants or nonmerchants?

2

If nonmerchants, add’l or diff terms not part of K

3

Merchants:

a

Acceptance expressly conditional on assent to add’l / diff terms

i

No K formed unless perf (or assent)

ii

If perf w/o assent or otherwise valid acceptance, K formed under UCC  (UCC § 2-207(3))

1

Terms not assented to DROP AWAY.  UCC fills in the gaps.  (Transwestern)

b

Acceptance not expressly conditional on assent

i

K formed — parties can’t walk away.  (UCC § 2-207(1))

15

Document info
Document views98
Page views98
Page last viewedFri Dec 09 20:04:26 UTC 2016
Pages33
Paragraphs2462
Words15966

Comments