I recently was confronted with a question where an
individual that I was working with had explained that they entered into a
contract with a vendor and the very next day, the vendor told them that the
sales rep had priced the contract lower than what they could deliver the actual
services for and as such, they were canceling the agreement arguing that it was
not a valid contract.
This got me to thinking…While it may be self-evident, the
formation of a contract is quite complex and there are many nuances as to what
constitutes an actual valid contract. So… I'm going to dedicate this blog post
to a class entitled “Contracts 101… The anatomy of a valid (K).”
In this class session we are going to discuss what makes a
valid offer.
So let's talk about the anatomy of a contract. For a
contract to be valid 4 factors must be met. There must be a proper offer, a
proper acceptance, consideration must be present and there must be no defenses
to the enforcement of the contract.
Seems simple enough right?...Oh boy, just wait till you hear
what I have to say on the subject.
WHAT LAW DOES THE
COURT APPLY?
Let's first understand the difference between the sale of
goods and the sale of services.
The sale of goods (where the court considers goods to be
movable tangible personal property) falls under article 2 of the Uniform
Commercial Code. The Sale of Services Including the Sale of Real Property, the
Sale of Intangible Personal Property and Other Types of Services Generally Are
Governed under the Common Law. Why Is This Important? Because the Law Treats
Certain Aspects of the Contract Differently Depending on Whether You're Selling
Goods or Whether You Are Selling Services.
Now you may be asking… Hey Brian, I sell both goods and
services together so how will the law treat me? I'm glad you asked. Generally,
the courts will use two types of tests to determine what law (UCC or the common
law) to apply in your situation.
1) The Graveman Test - this test is generally applied where
there is a complaint against you for your product or service and the court
looks at the portion of the transaction under which the complaint is based to
determine whether this issue involves goods or services.
2) The Predominant Factor Test- under this test, the court
looks at the entire transaction is a whole to determine whether it's
predominant purpose was the sale of goods or the provision of services and will
make a decision as to which law applies depending on which was more important.
WAS AN OFFER MADE?
Now that we understand what law we need to be concerned
with, we now must consider whether an offer was actually made. The actual legal
definition for an offer is:
"1) manifestation of present contractual
intent, 2) containing definite and certain terms, 3) communicated to an
identified offeree.”
1.
Manifestation
of Present Contractual Intent -
Under the law, there is what's known as "the objective theory of contract
formation." This theory relies on whether an objective reasonable person
or would believe that an offeror has intended to be bound by the contract if
the offer was accepted by the offeree. In other words, did the person making
the offer actually intend to make the offer? Or was there some underlying
reason that would not make the offer valid?
It is important to keep in mind that generally, when you quote a price to
someone this is not considered an offer but merely an invitation to receive an
offer. In addition, a newspaper advertisement is generally not considered an
offer unless (and this is important) the newspaper ad contains enough material
terms about the offer to make the offer appear to meet an objective theory of
contract formation and the newspaper advertisement identified the offeree.
2.
Containing
Definite and Certain Terms - At common law, an offer required all the
essential terms to be valid this included: the quantity, time for performance,
identity of the parties, price and the subject matter. Article 2 of the Uniform
Commercial Code dealing in the sale of goods has softened this issue so that
only the identity of the parties and quantity of goods need to be stated for a
valid offer. However, it is always recommended whenever you make an offer to
include as many material terms as possible.
What happens if a material term is missing? Well, the court will look at
either the course of performance (the previous performance between the parties
under this particular contract), the course of dealing (how these particular
parties performed under a different contract), or trade usage (where there are
no prior dealings between the parties but, there is some custom in the industry
that the court can follow).
3.
Communicated
to an Identified Offeree - This of course is the simplest of the issues and
the bottom line here is make certain that when you make an offer you
communicated to a specific identified party and not just the world in general.
IS YOUR OFFER STILL
OPEN?
In many situations an offer can actually terminate. An offer
can terminate on its own terms however, an offer can also terminate due to a
lapse of time, the death of the one who made the offer, destruction of the
subject matter (if it goes to the heart of the deal) and even illegality.
A rejection by the offeree can terminate an offer and
remember once an offer is terminated it is no longer valid so, an offeree
cannot reject your offer and then run back to you and say "I've changed my
mind!" Once your offer has been terminated it is dead. And remember, you
can also revoke your offer either directly or through an indirect revocation as
long as the offer is revocable and this brings us to our next issue.
IS YOUR OFFER
REVOCABLE?
Generally, the offer is freely revocable. However, there are
certain situations where your offer may not be revoked.
1) An Option Contract
- A promise by an offeror to hold an offer open for a particular period of
time that is supported by consideration (will get into consideration later)
will be irrevocable for the agreed period of time. However, if an offeree has
an option contract with you and rejects the offer and you as the offeror
detrimentally rely on this rejection than the option contract will be
revocable.
It is important to note, that even if there is no exchange
of consideration for an option, the mere recital of consideration will make the
option contract enforceable and non-revocable.
2) Merchants Firm Offer (UCC 2-215) - If
your business that sells goods, beware of this provision under the Uniform
Commercial Code. Under this provision, a writing signed by a merchant that
gives assurances that the offer will be held open will make the offer
irrevocable during the time stated. If there is no time stated, then the offer
will be held open for a reasonable time not to exceed 90 days.
3) Equitable Option /
Promissory Estoppel - If an offeree detrimentally relies on your offer, and
the offer is reasonable, foreseeable and substantial, than the offer will be
considered irrevocable for a reasonable period of time.
4) Unilateral
Contract - Where you make an offer
where acceptance of the offer is based on performance rather than an actual
agreement to accept the offer, your offer will be irrevocable once the performance
has begun. You as the offeror must give the offeree a reasonable amount of time
to complete the performance was their performance has started. Keep in mind,
there is a minority rule in the law where the offer under a unilateral contract
may be revocable at any time until the performance has been completed but again
this is a minority rule and you should not rely on it.
So there you have it, this is your first class in a series
of going through the anatomy of the contract. I hope you'll find some of this
information extraordinarily helpful and I think you'll really appreciate the
next class which will talk about an acceptance of your offer.