Fundemental Contract Law

[The Dane]

First of all I apologize, if my question is posted in the wrong category.

I’m a Danish law student and I’m writing my master thesis about Danish contract law with a comparative analysis of US contract law. More precisely I’m concerned with offers and acceptances. I’ve read E. Allan Farnsworth: “Contracts” 4th edition (2004) and I got some questions. I suppose they are pretty easy for you to answer

Farnsworth writes (on page 4) that a present sale is not a contract. If not the contract law what rules then govern the every situation where you go in to a store, pick something of the shelf and go pay for it (am I wrong in assuming that this is a present sale?).

When a shop keeper tags his goods with a price, is this considered an offer? and when I go in and put the goods on the counter wanting to buy them, is he obliged by the price tag to sell at the stated price? If not why and does his refusal have any other consequences for him? Does restatement of the law 2nd § 45 (or similar rule) make the price binding for the merchant because I have tendered the invited performance?

Is restatement of the law 2nd § 45 part of de lege lata? Doesn’t it make the notion that offers that only invite acceptance by performance can not be accepted by a promise some what illusory?

Does it make any difference if the buyer is not a consumer?

Are the answers to the above questions different in different states?

I hope someone can/will help me. I’ve been searching the web for quite some time and I haven’t been able to find the answers. If you can recommend some legal web sites you think is good I would appreciate that too.

 

[JETX]

I’m a Danish law student and I’m writing my master thesis about Danish contract law

Sorry, US Law ONLY!!

 

[The Dane]

Sorry, US Law ONLY!!

If you had read beyond the first sentence, you would have seen, that my question indeed is about US law

 

[JETX]

If you had read beyond the first sentence, you would have seen, that my question indeed is about US law

Lets see...

I’m a Danish law student and I’m writing my master thesis about Danish contract law

We don't do 'foreign' laws!!

And yes, though your question is really about US Contract law.... we don't do homework either!!

I got some questions.

Ask your law professor. That is what he/she is there for. Do you really think it would be fair to your fellow students or YOUR education for someone else to do your work for you??
At some point in your future, you will have to develop your own case theory... without the benefit of someone else doing it for you. This will be good practice for that time.

 

[jluros]

I am a US law student, not a lawyer. The information provided below IS NOT legal advice and is merely a reflection of knowledge gained from study.

> Farnsworth writes (on page 4) that a present sale is not a contract. If not the contract law what rules then govern the every situation where you go in to a store, pick something of the shelf and go pay for it (am I wrong in assuming that this is a present sale?).

This is a present sale. However, the law of contracts, specifically Uniform Commercial Code Article 2 (governing sale of goods) controls.

> When a shop keeper tags his goods with a price, is this considered an offer?

No. This is an invitation to make an offer. Merchandise tagged with a price is similar to an advertisement. The consumer is the offeror who makes an offer to purchase from the merchant, the offeree.

> and when I go in and put the goods on the counter wanting to buy them, is he obliged by the price tag to sell at the stated price?

Not necessarily. Other terms may affect the sales price. Merchants may have different prices for cash/credit transactions.

> If not why and does his refusal have any other consequences for him?

An offeree is under no obligation to accept an offer.

> Does restatement of the law 2nd § 45 (or similar rule) make the price binding for the merchant because I have tendered the invited performance?

No. UCC governs, not the restatement. However, in either case, the merchant is usually the offeree. However, in a case where the merchant offers a specific item at a specific price (this is customary where the advertisement states "1 at this price" and defines a specific item), the merchant is the offeror and is bound to sell to the first person who seasonably and properly accepts.


> Is restatement of the law 2nd § 45 part of de lege lata?

Depends on the state. The restatement is not binding.

> Doesn’t it make the notion that offers that only invite acceptance by performance can not be accepted by a promise some what illusory?

Be careful using the word illusory in the field of contracts. It means something specific, and is a term of art. No, it is not illusory.

> Does it make any difference if the buyer is not a consumer?

The court will probably consider that as a factor.

> Are the answers to the above questions different in different states?

Virtually all states have adopted the UCC to govern sales of goods. But statutes and case law are two separate things. One state may be more pro-consumer, and look to advertisements and such things more critically, while others may be more business-friendly. So, yes, the answers could differ between states. However, these are fundamental issues of contract law, and I wouldn't imagine much difference between states. But what do I know...I'm only a law student.

I hope this helps more than the other people who took the equivalent time to waste yours.

Jason

 

[matti422]

Also only a law student

I'm also only a law student, and I find your comparison interesting (although I know nothing about Danish law). Jason's suggestion is correct, the UCC generally governs sales of goods, and we study UCC heavily in our Contracts cases. Not all states have adopted the UCC, thouhg - you may want to investigate which ones haven't and the policy reason behind it. I'd recommend focusing some of your research on the UCC. We'll look for your paper.

 

[The Dane]

Thank you both of you. I greatly appreciate your input.

I’ve read UCC art. 2, and find it somewhat difficult comprehend. In my paper I’m trying to determine at what time an offeror is bound by his offer, and as far as I can see - and please correct me if I’m wrong - the UCC is silent about this.

It is indeed an interesting comparison. According to Danish law the offeror is bound by his offer until it is rejected or lapses. Furthermore display of price tagged goods in a store is characterized as an offer where as advertisements outside the store are characterized as invitations. Theorists are discussing why advertising in inside and outside stores is treated fundamentally different. Am I wrong in assuming, that there’s not much discussion about the distinction between offers and invitations among your theorists?

I will gladly send you a copy of my paper, but I think you’ll have to brush up on your Danish