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Class 12, Friday, Feb' 3

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http://www.resortsac.com/ Brenda Taube, President. Pop's Cones, franchisee. Host Marriott. franchisee. 2/3/2006. Class 12. 11. Malaker. promise must be 'clear and ... – PowerPoint PPT presentation

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Title: Class 12, Friday, Feb' 3


1
Class 12, Friday, Feb. 3
  • Announcements
  • Tuesday 270-89
  • Thursday 221-40
  • Friday 240-54, including Problem 3-4
  • Todays agenda
  • Pops Cones v. Resorts Intl Hotel
  • Problem 3-1
  • Problem 3-2

2
Today is a good day to try to help Professor
Chang find a new home for his familys dog.
3
Tyler
  • mid-size, 40 pounds
  • mutt, looks like a small lab
  • energetic
  • loyal
  • male, neutered

4
90 versus 87(2)
5
87
  • (2) An offer which the offeror should reasonably
    expect to induce action or forbearance of a
    substantial character on the part of the offeree
    before acceptance and which does induce such
    action or forbearance is binding as an option
    contract to the extent necessary to avoid
    injustice.

6
Pops Cones, Inc. v. Resorts International Hotel,
Inc.
  • 207 N.J. Super. 461, 704 A.2d 1321 (1998)

7
Merv Griffin, entertainer and entrepreneur
extraordinaire
8
Who is suing whom? For what kind of
damages? What is the legal basis for the
claim? What is the factual basis for the
claim? Arguments/defenses?
9
What happened at the trial court level? What
happened on appeal? Issue? Authorities/Rule? Ap
plication to facts in case? What policies does
it further/ignore?
10
  • Resorts International Hotel
  • http//www.resortsac.com/

Host Marriott franchisee
Brenda Taube, President Pops Cones, franchisee
11
Malaker
  • promise must be clear and definite
  • This sort of language might suggest that New
    Jersey Courts expect proof of most, if not all,
    of the essential legal elements of a promise
    before finding it to be clear and definite.
    p.211

12
Judge v. Jury
  • Affording plaintiff all favorable inferences,
    its equitable claim raised a jury question . . .
    . Plaintiffs complaint, therefore, should not
    have been summarily dismissed.
  • p. 213, end of opinion

13
Liability during negotiations
14
Note 1
  • Promise?

15
Note 2
  • Compare Hoffman and Pops Cones with Drennan

16
Note 3
  • Sophistication of the parties and outcome

17
Note 4
  • Damages
  • Expectation
  • Reliance

18
Problem 3-1
  • a discussion will be posted on-line

19
Problem 3-1
  • Theory of the case
  • In a suit by the church against the city, what is
    the main stumbling block going to be?

20
  • Main problem for churchrevocation by city
  • So in order for the church to win, you must come
    up with a theory of the case that prevents the
    revocation from having any effect.
  • How might it be the case?

21
  • Kbilateral already formed, in which case city
    couldnt revoke
  • option K based on beginning of performance under
    a unilateral K offer
  • option K based on reliance
  • ALTERNATIVEpromissory estoppel

22
UCC
23
UCC 2-205
  • An offer by a merchant to buy or sell goods in a
    signed writing which by its terms gives assurance
    that it will be held open is not revocable, for
    lack of consideration, during the time stated or
    if no time is stated for a reasonable time, but
    in no event may such period of irrevocability
    exceed three months but any such term of
    assurance on a form supplied by the offeree must
    be separately signed by the offeror.

24
Elements?
25
2-205 Elements
  • an offer to buy or sell goods
  • by a merchant
  • in a signed record AND
  • which gives assurance that it will remain open
  • IS IRREVOCABLE (even though no consideration)
  • DURATION? Time stated or if none stated,
    reasonable time not to exceed 3 months
  • Extra requirement if form is supplied by
    offereefirm offer part must be signed separately
    by offeror

26
Problem 3-2
  • Q--As of the time when she receives the above
    letter, what if any rights does Gale have against
    Branch? Advice re course of action? (skip for
    now the question of if she lived in Ontario,
    Canada)

27
  • Her rights depend on whether an option contract
    exists and whether she is able to make a timely
    acceptance.

28
Offer
  • lang. of commitment
  • rel. comp. terms
  • communicated . . .
  • The note signed by Wallace Branch constitutes an
    offer. It has language of commitment (I hereby
    grant to you . . an option to purchase), is
    specific as to the subject matter (horse
    "Tinman), contains relatively complete terms
    including price, and a limited warranty. It is
    likely that a reasonable person in the position
    of Dorothy Gale would believe that her acceptance
    was invited and would conclude the deal.

29
Problem/issue identified
  • In mid-September, Dorothy Gale receives a fax
    from Wallace Branch stating that he has decided
    to sell Tinman to another buyer. Whether Gale
    has any rights depends on whether or not this
    revocation is effective. Even if it is
    effective, it is possible that she might have a
    promissory estoppel claim.

30
Express option
31
Option via reliance
32
Firm offer under 2-205
  • an offer to buy or sell goods
  • by a merchant
  • in a signed writing AND
  • which gives assurance that it will remain open
  • IS IRREVOCABLE (even though no consideration)
  • DURATION? Time stated or if none stated,
    reasonable time not to exceed 3 months
  • Extra requirement if form is supplied by
    offereefirm offer part must be signed separately

33
  • issue re form supplied by Gale?
  • issue re duration?

34
ADVICE
35
End of class
  • Tuesday 270-89
  • Thursday 221-40
  • Friday 240-54, incl. Problem 3-4
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