Requirements of an Offer
- Offeror must have serious intention to be bound by offer
- Terms must be reasonably certain, definite, so parties and court can ascertain the terms of contract
- Offer must be communicated to the offeree
Situations Where Intent May Be Lacking
- Expressions of opinions
- Statement of future intent (I plan to sell my shirt)
- Preliminary negotiations (request/invite to negotiate is not an offer)
- Invitations to bid (construction bids)
- Advertisements and price lists
- Live/Online auctions
Definiteness of Terms
- Identification of parties
- Identification of object or subject matter of contract
- Consideration to be paid
- Time of payment, delivery, or performance
Termination by Act of Parties
- Revocation
- Irrevocable Offers
- Rejection
- Counteroffer
Revocation
offeror’s act of revoking, withdrawing, an offer.
Irrevocable Offer
contract under which the offeror cannot revoke his or her offer for a stipulated time period and the offeree can accept or reject the offer at any time during this period. The offeree must give consideration for the option to be enforceable.
Frequently used with sale or lease of real estate
Counteroffer
Rejection of the original offer and simultaneous making of new offer
Termination by Operation of Law
- Lapse of Time
- Destruction of specific subject matter
- Death or incompetence of offer/offeree
- Supervening illegality of contract
Unequivocal Acceptance
Mirror Image Rule
Silence as Acceptance
cannot constitute as an acceptance
Mailbox Rule
rule providing that an acceptance of an offer becomes effective on dispatch.
Not applied to instantaneous form of communications ie emails, those are considered sent when it leaves the control of the sender.
E-Contract Acceptance Provisions
- Acceptance of Terms
- Payment
- Return Policy
- Disclaimer
- Limitation on Remedies
- Privacy Policy
- Dispute Resolution
Forum Selection Clause
A provision in a contract designating the court, jurisdiction, or tribunal that will decide any disputes arising under the contract
Choice of Law Clause
specifying that any contract dispute will be settled according to the law of a particular jurisdiction, such as a state or country.
Click On Agreements
agreement that arises when a buyer, engaging in a transaction on a computer, indicates his or her assent to be bound by the terms of an offer by clicking on a button that says, for example, “I agree”; sometimes referred to as a click-on license or a click-wrap agreement.
Shrink Wrap Agreements
agreement whose terms are expressed in a document located inside a box in which goods (usually software) are packaged; sometimes called a shrink-wrap license.
Browse Wrap Terms
terms and conditions of use that are presented to an Internet user at the time a product, such as software, is downloaded but that need not be agreed to before the product is installed or used.
Partnering Agreements
agreement between a seller and a buyer who frequently do business with each other on the terms and conditions that will apply to all subsequently formed electronic contracts
U.S. Laws Affecting E-Contracts
- E-Sign Act
- UETA
E-Sign Act
E-signature has defined as “an electronic sound, symbol or process attached to or logically associated with a record and executed or adopted by a person with intent to sign the record.
UETA
Primary purpose is to remove barriers to e-commerce by giving the same legal effect to electronic record and signatures as is given to paper documents and signatures. (relating to transaction)
