Prior Posts: Types of Contracts – including Unilateral ones
Implied in Fact/Implied at Law
I am having a little trouble understanding the difference b/w implied at law and implied in fact? Could you please give me an example of each.
implied in fact: diet coke can does not expressly say that its contents are carbonated, but that is implied by the context, history, facts, etc. of the beverage sale.
implied at law: unconscious person is treated by a doctor. The court will write a contract between the parties. This is not implied in fact because an unconscious person cannot assent or dissent from the contract. A doctor cannot reasonably assume that the person has given consent to treatment by him. Or although the coke can says nothing about its use for removing paint from a car, if the seller knows that I am looking for a paint remover, and advises me to in his opinion coke is good for that purpose (and yes, coke syrup is a good paint remover), then the court will imply a promise that the coke is fit for that purpose .
If somebody sends you a letter offering a job of house sitting, which says "If you would like to spend July here, just come down on June 29. If you are not here by the end of that day, I will assume that you cannot make it," is performance needed for acceptance or can you accept by notifying the offeror in a reasonable manner? The book which the question came out of raises the question of whether this might be a unilateral contract, and if so he may not be able to accept with anything less than performance. I read Restatement section 32, Invitation of Promise or Performance, and I am not clear if that applies to unilateral contracts. If we were to interpret the offer as unclear about whether acceptance was appropriate by a promise, would that by definition not make this a unilateral contract we are dealing with?
Are unilateral contracts by definition only able to be completed by performance?
What do the parties intend? Does the offeree have reason to know that the offeror meant that replying, "I promise to spend July there," is not sufficient to constitute an acceptance?
When are the parties bound? Is the offerree unable to make firm July plans until the 29th? If the offerree comes down on the 29th and doesn’t like it, must the offerree spend July there or be in breach?
These are the issues at stake. 32 reflects an interpretive preference to generally interpret offers as inviting acceptance by promise. It helps answer the first question (what did the parties intend). It reflects the assumption that either party wants everything up in the air until the 29th.
The 2nd restatement did away with the words unilateral/bilateral. "Acceptance only by rendering performance" – that is what used to be called unilateral.
Unilateral contracts – Davis v. Jacoby
n Davis v. Jacoby (p.259, reading for unilateral contracts) the authors suggest using section 45 of Restatements 2d to cover plaintiffs’ loss. However, plaintiffs’ acts of closing the business and selling the house in Ontario constitute mere preparation for performance and therefore section 45 Rest. 2d provides no relief; an option contract is only created under 45 if "offeree tenders or begins invited performance…". Wouldn’t the applicable rule be section 87(2) which covers "action or forbearance of a substantial character on the part of the offeree before acceptance…"
BE CAREFUL. THE AUTHORS ARE REFERRING TO RESTATEMENT 1ST (QUOTED AT 262). BUT YOU ARE RIGHT, 87(2) IS APPLICABLE. [NOTE 87(2) APPLIES TO BOTH UNILATERAL AND BILATERAL CONTRACTS]
If it’s the case that plaintiffs’ acts in closing business and selling house are part of the performance, then wouldn’t they be covered under section 62 of Rest. 2d? 62 says that beginning of performance is acceptance of offer and a contract is formed so plaintiffs could sue for expectation interest assuming they show they were ready and willing to perform… right? it seems they would get a lot more than reliance if they used this track….
[IF SOMETHING WAS NEVER MENTIONED IN THE TEXT OR IN CLASS: IGNORE IT, AVOID IT, FORGET IT. 62 APPLIES TO THE LIMITED CASE OF WHEN AN OFFERREE HAS THE PWER TO CHOOSE BETWEEN PROMISE AND PERFORMANCE]
Furthermore, when an option contract is created under 45 or 87, where exactly is stated what the available remedy is? "The offeror’s duty of performance under any option contract is conditoinal on completion or tender of the invited performance…" (45 rest. 2d). Can the offerror be held to the terms of the contract — since there is no contract formation, only irrevocable option contract, the expectation interest shouldn’t be allowed to be recovered, right? Is it safe to say that under 45 and 87, the offeree may only recover his reliance damages? or is it restitution?
ALL REMEDIES ARE AVAILABLE TO THE COURT AT ALL TIMES IN ANY EVENTS.
WHEN A FIRM OFFER IS ACCEPTED, A CONTRACT IS FORMED. WHY SHOULDN’T COURT ENFORCE THE TERMS OF THE CONTRACT?
IN BRACKENBURY (p. 282). THE PLAINTIFFS GET THE HOUSE – THEY GET WHAT THEY EXPECTED – AND THEY DON’T HAVE TO FULLY PERFORM WHAT THEY PROMISED (THEY ARE READY AND WILLING TO TENDER THEIR PERFORMANCE, BUT A CONDITION OF THEIR PERFORMANCE – THE DEFENDANT’S COOPERATION – IS NOT FULFILLED).
And one last thing – if on the exam i’m presented with an issue like this (i.e. i’m not sure if something is going to be percieved as preparation for or beginning of actual performance), do you approve of discussing both possibilities (i.e. the section 45/87 track – YES
and the 62 track)? – NO, AVOID THAT WHICH APPEARS NEITHER IN TEXT NOR CLASS
Implied-in Fact Promises and Offer and Acceptance
When I go to the store and buy a box of cereal what are the promises exchanged? Is there some sort of implied promise from the store that it is in fact a box of cereal and not a box of nails? What would my promise be? If I write a check, could it be a promise to pay? If I pay in cash, am I completing a performance (payment) in exchange for the store’s promise that it is a box of cereal?
—-When is the moment of obligation? (when can’t you back out?) The contract is classically formed at that point. The UCC 2-204 takes the view that the moment of the making need not be determined if the parties intended to enter into a contract. The UCC then asks, what did the parties reasonably interpret was being promised.
From the classical viewpoint, the easiest and preferred way to look at it is that when you go to the cash register, you are promising to pay if they promise to give you the box. (and when you pay, you are performing what you promised).
You ask what type of box have they promised to give you in exchange? A reasonable person would tell the shopper that the food store has impliedly promised quite a lot by promising to sell you the box. That it contains cereal is only the beginning. Haven’t they promised you that the cereal is fresh? Even, maybe, that the bag inside the box is intact? (I’d take a box back if the bag wasn’t intact, demanding a new box). And, much more (perhaps that there is no roach turd in the bottom of the box, even if the bag is intact). The question is what a reasonable person would think was being promised. (You are promising that the credit card you are giving isn’t stolen, that you don’t know that you have no money in the bank for your check, that you are not offering counterfeit money.)
Thinking about it as a unilateral contract doesn’t change it, only then (if the performance is the tender of the box), the question is what the offeree (in this case the store) is reasonable in understanding is the performance demanded. I’d say it included tendering a box with an intact bag of fresh cereal. If they don’t do that, then they haven’t completed the performance. You might also say (and you do) that it is a unilateral contract in which the performance demanded is the payment of the money in exchange for the promise of the box. In that case, the question is what the customer is justifed in understanding was being offered (and I’d think it was a box with an intact bag of cereal).
Are the parties bound after FULL performance or after performance has begun because doesnt Rst 45(2) say after it begins?
(RER) The offeror’s offer is irrevocable after performance begins, but the offeree is not bound to complete performance. (R2 45(1)). After the offeree completes performance (fully performs), the offeror’s performance is due (R2 45(2). If the offeree never completes performance, offeror is not bound to perform.
September 22nd, 2015
A couple of years ago, Bill Maher (appearing on Leno), proposed that Donald Trump reminded him of an orangutan and, “subtly” referencing Trump’s previous “offer” to the president, announced that he would donate $5M to the charity of Trump’s choice if Trump could prove that he is not the spawn of an oranguan. Trump seized on this, telling “Extra” television that he made “an absolute acceptance” of the offer by sending a copy of his birth certificate to Maher. Trump eventually sued Maher to collect on the $5M, before withdrawing the suit “to be amended and refiled at a later date.”
Why did Trump drop the suit? He would have to show that he was justified in believing this wasn’t a joke (that he had the power of acceptance).
Lawyer Makes Girl Obsessed With All Things Legal Sign Dating Contract
August 7th, 2015