What is the mailbox rule?
A common law protection whereby an acceptance is effective when dispatched
What is overtaking acceptance?
If the offeree dispatches a rejection, and afterward changes their mind and dispatches an acceptance, they do not get the benefit of the mailbox rule – whichever communication is received first governs.
What is overtaking rejection?
Rejection overpowers the mailbox rule – if an offeror receives a rejection before an acceptance, the rejection is effective, even if the acceptance was dispatched before the rejection.
How can an offeree accept an offer for a bilateral contract under the common law?
- Communication: an unequivocal agreement to precisely the terms of the offer
- Performance: only when expressly invited or when otherwise reasonable, and with timely notice of acceptance
How can an offeree accept an offer for a unilateral contract under the common law?
Completion of performance (notice is not required)
How can an offeree accept an offer under UCC Article 2-206?
- Any manner reasonable under the circumstances (unless otherwise unambiguously stated in the offer)
- Prompt shipment of goods (notice is required within a reasonable time)
How can an offeree accept an offer under CISG Article 18?
- A statement or conduct indicating assent
- Performance: if established by agreement or prior practice or usage
- Acceptance is effective when it reaches the offeror
- Oral offers must be accepted immediately
How does the common law deal with a battle of the forms?
The last shot rule: where an exchange of communications results in a series of counteroffers, and the parties begin performance, a contract will be concluded on the basis of the last open counteroffer.
In the battle of the forms, how does UCC 2-207(1) change the “mirror image rule” for acceptance of an offer?
It disposes of the “mirror image” rule. If a communication is intended as an acceptance, it is considered a valid acceptance, even if it contains terms that differ from those in the offer. UNLESS, acceptance is expressly conditional on the additional terms.
What is the “knock-out” rule for acceptance under UCC 2-207.
Additional terms in an acceptance will be knocked out. They are not considered part of the contract, unless both parties are merchants.
What is the exception to the “knock out” rule for acceptance under UCC 2-207(2).
When both parties are merchants, the additional terms of an acceptance become part of the contract UNLESS:
1. the offer expressly limits acceptance to the terms of the offer
2. the additional terms materially alter the offer
3. notification of objection has been already given, or is given within a reasonable amount of time
How does UCC 2-207(3) treat acceptance by performance?
A contract can be formed through performance, but the terms of the contract are limited to ONLY the terms that the parties agreed upon.
How does CISG Article 19 treat an acceptance that differs from the offer?
- It is considered a counteroffer
- UNLESS the additional terms dont materially alter the offer AND the offeror doesn’t object to them
What does CISG Article 19(3) consider material alterations?
Any terms relating to price, payment, quality and quantity of the goods, place and time of delivery, extent of one party’s liability to the other or the settlement of disputes
When are boilerplate terms enforced?
They are generally enforced if a reasonable person would be on inquiry/constructive notice of the terms and conditions, whether actually read or not
