1. Contract Formation – Elements of Formation
Offer
Components:
Current intent to have offeree enter into bargain.
Gauged objectively – would a third-party observer believe that acceptance is invited?
Communicated to offeree (the other party has to know of the offer).
Sufficiently definite terms of the bargain.*
The big ticket questions include: what things are not typically offers: advertisements (usually offers to enter into negotiations); social contracts; “mere” inquiries expecting negotiations; written agreement to follow; puffing, statements of opinion…
If particularly specific, might be an offer (if thing, offeree, price, quantity, etc. are particularly clear).
Recall the formation “elements,” and their individual “components.”
* This is not the same as the fourth element of “sufficient specificity of essential terms” - the latter verifies sufficient coalescence, or mutuality of, understanding of, the contract’s import.
Lack of one of these prevents “formation.” Anticipate differences in the mechanics for failures of condition (forestalls or removes a contractual duty) and for defenses to enforcement (presumes formation, but one party can avoid enforcement for some problem, or bad act of the other party).
U.C.C. auctions with and without reserve flip who is offeree…
© 2018 Paul J. Carrier, Paul J Carrier, LLC Blue – Category Recognition; White – Specific Category; Yellow – “Black Letter” Rules (to be memorized); Green – Main Factual Issues – Analysis; Red – Upper-Level, Integrated Comprehension