Restatement 24 - Definition of Offer (Mutual Assent)

(Lonergan v. Scolnick)

An offer is the manifestation of willingness to enter into a bargain, so made as to justify another person in understanding that his assent to that bargain is invited and will conclude it.

creates a power of acceptance

Restatement 25 - Definition of Option Contract (Mutual Assent)

(Humble Oil & Refining Co. v. Westside Investment)

An option contract is a promise which meets the requirements for the formation of a contract and limits the promisor's power to revoke an offer.

Needs to be supported by consideration.

Restatement 26 - Preliminary Negotiations (What an offer is not.) (Mutual Assent)

(Lefkowitz v. Great Minneapolis Surplus Store, Leonard v. Pepsico, Southworth v. Oliver)

(1) At an auction unless a contrary intention is manifested,

   (a) the auctioneer invites offers from successive bidders which he may accept or reject;

   (b) when goods are put up without reserve, the auctioneer makes an offer to sell at any price bid by the highest bidder, and after the auctioneer calls for bids the goods cannot be withdrawn unless no bid is made within a reasonable time;

   (c) whether or not the auction is without reserve, a bidder may withdraw his bid until the auctioneer's announcement of completion of the sale, but a bidder's retraction does not revive any previous bid.

(2) Unless a contrary intention is manifested, bids at an auction embody terms made known by advertisement, posting or other publication of which bidders are or should be aware, as modified by any announcement made by the auctioneer when the goods are put up.

(1) An offer may invite or require acceptance to be made by an affirmative answer in words, or by performing or refraining from performing a specified act, or may empower the offeree to make a selection of terms in his acceptance.

(2) Unless otherwise indicated by the language or the circumstances, and offer invites acceptance in any manner and by any medium reasonable in the circumstances.

Restatement 33 - Certainty (Mutual Assent)

(Joseph Martin Delicatessen, Oglebay v. Armco., carlill v. Ball-Co, 

(1) Even though a manifestation of intention is intended to be understood as an offer, it cannot be accepted so as to form a contract unless the terms of the contract are reasonably certain.

(2) Ther terms of a contract are reasonably certain if they provide a basis for determining the existence of a breach and for giving an appropriate remedy

(3) The fact that one or more terms of a proposed bargain are left open or uncertain may show that a manifestation of intention is not intended to be understood as an offer or as an acceptance.

(1) The terms of a contractmay be reasonable certain even though it empowers one or both parties to make a selection of terms in the course of performance.

(2) Part performance under an agreement may remove uncertainty and establish that a contract enforceable as a bargain has been formed.

(3) Action in reliance on an agreement may make a contractual remedy appropriate even though uncertainty is not removed.

(1) An Offeree's power of acceptance may be terminated by

(a) rejection or counter-offer by offeree, or

(b) lapse of time, or

(c) revocation by the offeror, or

(d) death or incapacity of the offeror/offeree

(2) In addition, an offeree's power of acceptance is terminated by the non-occurrence of any condition of acceptance under the terms of the offer.

Rejection or counter-offer by mail or telegram does not terminate the power of acceptance until received by the offeror, but limits the power so that a letter or telegram of acceptance started after the sending of an otherwise effective rejection or counter-offer is only a counter-offer unless the acceptance is received by the offeror before he receives the rejection or counter-offer.

Restatement 42 - Revocation (Mutual Assent)

(Hendricks)

An offeree's power of acceptance is terminated when the offeree receives from the offeror a manifestation of an intention not to enter into the proposed contract.

Restatement 43 - Indirect Communication of revocation (Mutual Assent)

(Dickinson v. Dodds)

An offeree's power of acceptance is terminated when the offeror takes definite action inconsistent with an intention to enter into the proposed contract AND the offeree acquires reliable information to that effect.

An offeror's power of revocation is not limited by the deposit of money or other property to be forfeited in the event of revocation, but the deposit may be forfeited to the extent that it is not a penalty.

(1) Where an offer incites and offeree to accept by rendering a performance AND does not invite a promissory acceptance, an option contract is created when the offeree tenders or begins the invited performance or tenders a beginning of it.

(2) The offeror's duty of performance under an option contract so created is condition on completion or tender of the invited performace in accordance with the terms of the offer.

This applies to "offers for a unilateral contract" Acceptance by performance.

A promises B to sell him a specified chattel for $5, stating that B is not to be bound until he pays the money. B tenders $5 within a reasonable time, but A refuses to accept the tender. There is a breach of contract.

If the invited performance takes time, the invitation to perform necessarily includes an invitation to begin performance. 

Restatement 50 - Acceptance of Offer Defined; Acceptance by Performance; Acceptance by Promise

(Ever-Tite Roofing Corp. v. Green, Corinthian Pharmaceutical Systems, Inc. v. Lederle, 

(1) Acceptance of an offer is a manifestation of assent to the terms thereof made by the offeree in a manner invited or required by the offer

(2) Acceptance by performance requires that at least part of what the offer requests be performed or tendered and includes acceptance by a performance which operates as a return promise.

(3) Acceptance by a promise requires that the offeree complete every act essential to the making of the promise.

(1) An offer can be accepted by the rendering of a performance only if the offer invites such and acceptance

(2) Except as stated in sec. 69, the rendering of a performance does not constitute an acceptance if within a reasonable time the offeree exercises reasonable diligence to notify the offeror of non-acceptance.

(3) Where an offer of a promise invites acceptance by performance AND does not invite promissory acceptance, the rendering of the invited performance does not constitute and acceptance if before the offeror performs his promise the offeree manifests and intention not to accept.

(1) Where an offer invites an offeree to accept by rendering a performance, no notification is necessary to make such an acceptance effective unless the offer requests such a notification.

(2) If an offeree who accepts by rendering a performance has reason to know that the offeror has no adequate means of learning of the performance with reasonable promptness and certainty, the contractual duty of the offeror is discharged unless:

(a) The offeree exercises reasonable diligence to notify the offeror of acceptance, or

(b) the offeror learns of the performance withing a reasonable time, or

(c) the offer indicates that notification of acceptance is not required.

Restatement 61 - Acceptance Which Requests change of terms

(see UCC 2-207)

An acceptance which requests a change or addition to the terms of the offer is not thereby invalidated unless the acceptance is made to depend on an assent to the changed or added terms.

(1) Where an offer invites and offeree to choose between acceptance by promise and acceptance by performance, the tender or beginning of the invited performance or a tender of a beginning of it is an acceptance by performance.

(2) Such an acceptance operates as a promise to render complete performance.

THIS DOES NOT CREATE AN OPTION CONTRACT

Restatement 63 - Time when Acceptance Takes Effect (Mutual Assent)

(Adams v. Lindsell)

Unless the offer provides otherwise:

(a) an acceptance made in a manner and by a medium invited by an offer is operative and completes the manifestation of mutual assent as soon as put out of the offeree's possession, without regard to whether it ever reaches the offeror; BUT

(b) an acceptance under an option contract is not operative until received by the offeror.

Restatement 69 (haha) - Acceptance by silence of exercise of dominion (Mutual Assent)

(Ammons v. Wilson & Co part (c), Rusell v. Texas)

(1) Where an offeree fails to reply to an offer, his silence and inaction operate as an acceptance in the following cases only:

   (a) Where an offeree takes the benefit of offered services with reasonable opportunity to reject them and reason to know that they were offered with the expectation of compensation

   (b) Where the offeror has stated or given the offeree reason to understand that assent may be manifested by silence or inaction, and the offeree in remaining silent and inactive intends to accept the offer.

   (c) Where because of previous dealings or otherwise, it is reasonable that the offeree should notify the offeror if he does not intend to accept.

(2) An offeree who does any act inconsistent with the offeror's ownership of offered property is bound in accordance with the offered terms unless they are manifestly unreasonable. But if the act is wrongful as against the offeror it is an acceptance only if ratified by him.

Restatement 20 - Effect of misunderstanding (Mutual Assent)

(Peerless, Konic Int'l)

(1) There is no manifestation of mutual assent to an exchange if the parties attach materially different meaning to their manifestations AND

   (a) neither party knows or has reason to know the meaning attached by the other; or

   (b) each party knows or each party has reason to know the meaning attached by the other.

(2) The manifestations of the parties are operative in accordance with the meaning attached to them by one of the parties if:

   (a) that party does not know of any different meaning attached by the other, and the other knows the meaning attached by the first party; OR

   (b) that party has no reason to know of any different meaning attached by the other, and the other has reason to know the meaning attached by the first party.

Comment C: "even though the parties manifest mutual assent to the same words of the agreement, there may be no contract because of a material difference of understanding as to the terms of the exchange."

(1) To constitute consideration, a performance or a return promise must be bargained for.

(2) A performance or return promise is bargained for if it is sought by the promisor in exchange for his promise and is given by the promisee in exchange for that promise.

(3) The performance may consist of:

   (a) an act other than a promise, OR

   (b) a forbearance, OR

   (c) the creation, modification, or destruction of a legal relation

(4) The performance or return promise may be given to the promisor or to some other person. It may be given by the promisee or by some other person.

Eg.

A offers to buy a book owned by B and to pay B $10 in exchange therefor. B accepts the offer and delivers the book to A. The transfer and delivery of the book constitutes a performance and are consideration for A's promise. 

A receives a gift fro B of a book worth $10. Subsequently A promises to pay B the value of the book. There is no consideration for A's promise. This is so even though B at the time he makes the gift secretly hopes that A will pay him for it.

Restatement 76 - Conditional Promise (Consideration)

(Fiege v. Boehm)

(1) A conditional promise is not consideration if the promisor knows at the time of making the promise that the condition cannot occur.

(2) A promise conditional on a performance by the promisor is a promise of alternative performances within SS 77 unless occurrence of the condition is also promised. 

Restatement 77 - Illusory and Alternative Promises (Consideration)

(Omni group)

A promise or apparent promise is not consideration if by its terms the promisor or purported promisor reserves a choice of alternative performance unless

  (a) each of the alternative performances would have been consideration if it alone had been bargained for; OR

  (b) one of the alternative performances would have been consideration and there is or appears to the parties to be a substantial possibility that before the promisor exercises his choice events may eliminate the alternative which would not have been consideration.

Restatement 79 - Adequacy of Consideration; Mutuality of Obligation (Consideration)

(browning v. johnson, apfel)

If the requirement of consideration is met, there is no additional requirement of:

   (a) a gain, advantage, or benefit to the promisor or a loss, disadvantage, or detriment to the promisee; OR

   (b) equivalence in the values exchanged; OR

   (c) "mutuality of obligation"

(1) A promise to pay all or part of an antecedent contractual or quasi-contractual indebtedness owed by the promisor is binding if

Restatement 87 - Option Contract (Consideration)

(Baird, Drennan, SKB)

(1) An offer is binding as an option contract if it

   (a) is in writing and signed by the offeror, recites a purported consideration for the making of the offer, and proposes an exchange on fair terms within a reasonable time; OR

   (b) is made irrevocable by statute

(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. 

Restatement 89 - Modification of Executory Contract (Consideration)

(Angel v. Murray)(exception to modification)

A promise modifying a duty under a contract not fully performed on either side is binding

   (a) if the modification is fair and equitable in view of circumstances not anticipated by the parties when the contract was made; OR

   (b) to the extent provided by statute; or

   (c) to the extent that justice requires enforcement in view of material change of position in reliance on the promise.

Restatement 90 - Promise reasonably inducing action or forbearance

(Ricketts v. Scothorn, Allegheny College, Feinberg v. Pfeiffer, Cohen v. Cowles, hoffman v. red owl)

(1) A promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise. The remedy granted for breach may be limited as justice requires.

(2) A charitable subscription or a marriage settlement is binding Subsection (1) without proof that the promise induced action or forbearance. (Allegheny)

Restatement 131 - General Requisites of a memorandum (SOF)

(Crabtree v. elizabeth Arden, DF Activities)

Unless additional requirements are prescribed by the particular statute, a contract within the Statute of Frauds is enforceable if it is evidenced by any writing, signed by or on behalf of the party to be charged, which

   (a) reasonably identifies the subject matter of the contract,

   (b) is sufficient to indicate that a contract with respect thereto has been made between the parties or offered by the signer ro the other party, AND

   (c) states with reasonable certainty the essential terms of the unperformed promises in the contract.

The memorandum may consist of several writings if one of the writings is signed and th writings in the circumstances clearly indicate that they relate to the same transaction.

Where a memorandum of a contract within the Statute is signed by fewer than all parties to the contract and trhe Statute is not otherwise satisfied (how?), the contract is enforceable against the signers but not against the others.

(1) Where a mistake of both parties at the time a contract was made as to a basic assumption on which the contract was made has a material effect on the agreed exchange of performances, the contract is voidable by the adversely affected party unless he bears the risk of the mistake under the rule stated in ss154

(2) In determining whether the mistake has a material effect on the agreed exchange of performances, account is taken of any relief by wayt of reformation, restitution, or otherwise.

Where a mistake of one party at the time a contract was made as to a basic assumption on which he made the contract has a material effect on the agreed exchange of performances that is adverse to him, the contract is voidable by him if he does not bear the risk of the mistake under the rule stated in ss 154, and

   (a) the effect of the mistake is such that enforcement of the contract would be unconscionable, OR

   (b) the other party had reason to know of the mistake or his fault caused this mistake.

A party bears the risk of a mistake when:

   (a) the risk is allocated to him by agreement of the parties, OR

   (b) he is aware, at the time the contract is made, that he has only limited knowledge with respect to the facts to which the mistake relates but treats his limited knowledge as sufficient, OR

   (c) the risk is allocated to him by the court on the ground that it is reasonable in the circumstances to do so.

(1) Where the parties have attached the same meaning to a promise or agreement or a term thereof, it is interpreted in accordance with that meaning.

(2) Where the parties have attached different meanings to a promise or agreement or a term thereof, it is interpreted in accordance with the meaning attached by one of them if at the time the agreement was made:

   (a) that party did not know of any different meaning attached by the other, and the other knew the meaning attached by the first party; OR

   (b) that party had no reason to know of any different meaning attached by the other, and the other had reason to know the meaning attached by the first party.

(3) Except as stated in this Section, neither party is bounf by the meaning attached by the other, even though the result may be a failure of mutual assent.

(1) Words and other conduct are interpreted in the light of all the circumstances, and if the principal purpose of the parties is ascertainable it is given great weight.

(2) A writing is interpreted as a whole, and all writings that are part of the same transaction are interpreted together

(3) Unless a different intention is manifested,

   (a) where language has a generally prevailing meaning, it is interpreted in accordance with that meaning;

   (b) technical terms and words of art are given their technical meaning when used in a transaction within their technical field.

(4) Where an agreement involves repeated occasions for performance by either party with knowledge of the nature of the performance and opportunity for objection to it by the other, any course of performance accepted or acquiesced in without objection is given great weight in the interpretation of the agreement.

(5) Wherever reasonable, the manifestations of intention of the parties to a promise or agreement are interpreted as consistent with each other and with any relevant course of performance, course of dealing, or usage of trade.

In choosing among the reasonable meanings of a promise or agreement or a term thereof, that meaning is generally preferred which operates against the party who supplies the words or fro whom a writing otherwise proceeds.

When it is a condition of an obligor's duty that he be satisfied with respect to the obligee's performance or with respect to something else, and it is practicable to determine whether a reasonable person in the position of the obligor would be satisfied, an interpretation is preferred under which the condition occurs if such a reasonable person in ther position of the obligor would be satisfied.

Restatement 81 - Consideration as Motive inducing Cause (Consideration)

(Thomas v. Thomas)

(1) The fact that what is bargained for does not of itself induce the making of a promise does not prevent it from being consideration for the promise.

(2) The fact that a promise does not of itself induce a performance or return promise does not prevent the performance or return promise from being consideration for the promise.

Restatement 86 - Promise for Benefit received (Consideration)

(Mills v. Wyman, Webb v. McGowin, Harrington v. Taylor)

(1) A promise made in recognition of a benefit previously reveiced by the promisor from the promisee is binding to the extent necessary to prevent injustice.

(2) A promise is not binding under Subsection(1)

   (a) if the promise conferred the benefit as a gift or for other reasons the promisor has not been unjustly enriched; OR

   (b) to the extent that its value is disproportionate to the benefit.

Restatement 21 - Intention to be Legally bound (Mutual Assent)

(Lucy v. Zehmer, Embry v. Hargadine, Cohen v. Cowles)

Neither real nor apparent intention that a promise be legally binding is essential to the formation of a contract, but a manifestation of intention that a promise shall not affect legal relations may prevent the formation of a contract.

§ 1-102. Purposes; Rules of Construction; Variation by Agreement.

(1) This Act shall be liberally construed and applied to promote its underlying purposes and policies.

(2) Underlying purposes and policies of this Act are

• (a) to simplify, clarify and modernize the law governing commercial transactions;
• (b) to permit the continued expansion of commercial practices through custom, usage and agreement of the parties;
• (c) to make uniform the law among the various jurisdictions.

(3) The effect of provisions of this Act may be varied by agreement, except as otherwise provided in this Act and except that the obligations of good faith, diligence, reasonableness and care prescribed by this Act may not be disclaimed by agreement but the parties may by agreement determine the standards by which the performance of such obligations is to be measured if such standards are not manifestly unreasonable.

(4) The presence in certain provisions of this Act of the words "unless otherwise agreed" or words of similar import does not imply that the effect of other provisions may not be varied by agreement under subsection (3).

(5) In this Act unless the context otherwise requires

• (a) words in the singular number include the plural, and in the plural include the singular;
• (b) words of the masculine gender include the feminine and the neuter, and when the sense so indicates words of the neuter gender may refer to any gender.

§ 1-203. Obligation of good faith.

Every contract or duty within this Act imposes an obligation of good faith in its performance or enforcement.

§ 1-302. Variation by Agreement.

(a) Except as otherwise provided in subsection (b) or elsewhere in [the Uniform Commercial Code], the effect of provisions of [the Uniform Commercial Code] may be varied by agreement.

(b) The obligations of good faith, diligence, reasonableness, and care prescribed by [the Uniform Commercial Code] may not be disclaimed by agreement. The parties, by agreement, may determine the standards by which the performance of those obligations is to be measured if those standards are not manifestly unreasonable. Whenever [the Uniform Commercial Code] requires an action to be taken within a reasonable time, a time that is not manifestly unreasonable may be fixed by agreement.

(c) The presence in certain provisions of [the Uniform Commercial Code] of the phrase "unless otherwise agreed", or words of similar import, does not imply that the effect of other provisions may not be varied by agreement under this section.

§ 1-304. Obligation of Good Faith.

Every contract or duty within [the Uniform Commercial Code] imposes an obligation of good faith in its performance and enforcement.

§ 2-102. Scope; Certain Security and Other Transactions Excluded From This Article.

Unless the context otherwise requires, this Article applies to transactions in goods; it does not apply to any transaction which although in the form of an unconditional contract to sell or present sale is intended to operate only as a security transaction nor does this Article impair or repeal any statute regulating sales to consumers, farmers or other specified classes of buyers.

§ 2-204. Formation in General.

(1) A contract for sale of goods may be made in any manner sufficient to show agreement, including conduct by both parties which recognizes the existence of such a contract.

(2) An agreement sufficient to constitute a contract for sale may be found even though the moment of its making is undetermined.

(3) Even though one or more terms are left open a contract for sale does not fail for indefiniteness if the parties have intended to make a contract and there is a reasonably certain basis for giving an appropriate remedy.

§ 2-206. Offer and Acceptance in Formation of Contract.

(1) Unless otherwise unambiguously indicated by the language or circumstances

• (a) an offer to make a contract shall be construed as inviting acceptance in any manner and by any medium reasonable in the circumstances;
• (b) an order or other offer to buy goods for prompt or current shipment shall be construed as inviting acceptance either by a prompt promise to ship or by the prompt or current shipment of conforming or non-conforming goods, but such a shipment of non-conforming goods does not constitute an acceptance if the seller seasonably notifies the buyer that the shipment is offered only as an accommodation to the buyer.

(2) Where the beginning of a requested performance is a reasonable mode of acceptance an offeror who is not notified of acceptance within a reasonable time may treat the offer as having lapsed before acceptance.

UCC 2-207 - Additional Terms in Acceptance or Confirmation

(DTE Energy v. Briggs)

§ 2-207. Additional Terms in Acceptance or Confirmation.

(1) A definite and seasonable expression of acceptance or a written confirmation which is sent within a reasonable time operates as an acceptance even though it states terms additional to or different from those offered or agreed upon, unless acceptance is expressly made conditional on assent to the additional or different terms.

(2) The additional terms are to be construed as proposals for addition to the contract. Between merchants such terms become part of the contract unless:

• (a) the offer expressly limits acceptance to the terms of the offer;
• (b) they materially alter it; or
• (c) notification of objection to them has already been given or is given within a reasonable time after notice of them is received.

(3) Conduct by both parties which recognizes the existence of a contract is sufficient to establish a contract for sale although the writings of the parties do not otherwise establish a contract. In such case the terms of the particular contract consist of those terms on which the writings of the parties agree, together with any supplementary terms incorporated under any other provisions of this Act.

UCC 2-209 - Modification, Rescission and Waiver

§ 2-209. Modification, Rescission and Waiver.

(1) An agreement modifying a contract within this Article needs no consideration to be binding.

(2) A signed agreement which excludes modification or rescission except by a signed writing cannot be otherwise modified or rescinded, but except as between merchants such a requirement on a form supplied by the merchant must be separately signed by the other party.

(3) The requirements of the statute of frauds section of this Article (Section 2-201) must be satisfied if the contract as modified is within its provisions.

(4) Although an attempt at modification or rescission does not satisfy the requirements of subsection (2) or (3) it can operate as a waiver.

(5) A party who has made a waiver affecting an executory portion of the contract may retract the waiver by reasonable notification received by the other party that strict performance will be required of any term waived, unless the retraction would be unjust in view of a material change of position in reliance on the waiver.

UCC 2-302 - Unconscionability

(jones v. star corp.)

§ 2-302. Unconscionable contract or Clause.

(1) If the court as a matter of law finds the contract or any clause of the contract to have been unconscionable at the time it was made the court may refuse to enforce the contract, or it may enforce the remainder of the contract without the unconscionable clause, or it may so limit the application of any unconscionable clause as to avoid any unconscionable result.

(2) When it is claimed or appears to the court that the contract or any clause thereof may be unconscionable the parties shall be afforded a reasonable opportunity to present evidence as to its commercial setting, purpose and effect to aid the court in making the determination.

§ 2-305. Open Price Term.

(1) The parties if they so intend can conclude a contract for sale even though the price is not settled. In such a case the price is a reasonable price at the time for delivery if

• (a) nothing is said as to price; or
• (b) the price is left to be agreed by the parties and they fail to agree; or
• (c) the price is to be fixed in terms of some agreed market or other standard as set or recorded by a third person or agency and it is not so set or recorded.

(2) A price to be fixed by the seller or by the buyer means a price for him to fix in good faith.

(3) When a price left to be fixed otherwise than by agreement of the parties fails to be fixed through fault of one party the other may at his option treat the contract as cancelled or himself fix a reasonable price.

(4) Where, however, the parties intend not to be bound unless the price be fixed or agreed and it is not fixed or agreed there is nocontract. In such a case the buyer must return any goods already received or if unable so to do must pay their reasonable value at the time of delivery and the seller must return any portion of the price paid on account.

UCC -  2-306. Output, Requirements and Exclusive Dealings.

(mcmichael v. price, lucy lady diff-gordon - the lady gaga of the day no doubt, Feld v. Henry Levy)

§ 2-306. Output, Requirements and Exclusive Dealings.

(1) A term which measures the quantity by the output of the seller or the requirements of the buyer means such actual output or requirements as may occur in good faith, except that no quantity unreasonably disproportionate to any stated estimate or in the absence of a stated estimate to any normal or otherwise comparable prior output or requirements may be tendered or demanded.

(2) A lawful agreement by either the seller or the buyer for exclusive dealing in the kind of goods concerned imposes unless otherwise agreed an obligation by the seller to use best efforts to supply the goods and by the buyer to use best efforts to promote their sale.

§ 2-307. Delivery in Single Lot or Several Lots.

Unless otherwise agreed all goods called for by a contract for sale must be tendered in a single delivery and payment is due only on such tender but where the circumstances give either party the right to make or demand delivery in lots the price if it can be apportioned may be demanded for each lot.

UCC § 2-309. Absence of Specific Time Provisions; Notice of Termination.

§ 2-309. Absence of Specific Time Provisions; Notice of Termination.

(1) The time for shipment or delivery or any other action under a contract if not provided in this Article or agreed upon shall be a reasonable time.

(2) Where the contract provides for successive performances but is indefinite in duration it is valid for a reasonable time but unless otherwise agreed may be terminated at any time by either party.

(3) Termination of a contract by one party except on the happening of an agreed event requires that reasonable notification be received by the other party and an agreement dispensing with notification is invalid if its operation would be unconscionable.

UCC § 2-308. Absence of Specified Place for Delivery.

§ 2-308. Absence of Specified Place for Delivery.

Unless otherwise agreed

• (a) the place for delivery of goods is the seller's place of business or if he has none his residence; but
• (b) in a contract for sale of identified goods which to the knowledge of the parties at the time of contracting are in some other place, that place is the place for their delivery; and
• (c) documents of title may be delivered through customary banking channels.

UCC - § 2-201. Formal Requirements; Statute of Frauds.

§ 2-201. Formal Requirements; Statute of Frauds.

(1) Except as otherwise provided in this section a contract for the sale of goods for the price of $500 or more is not enforceable by way of action or defense unless there is some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought or by his authorized agent or broker. A writing is not insufficient because it omits or incorrectly states a term agreed upon but the contract is not enforceable under this paragraph beyond the quantity ofgoods shown in such writing.

(2) Between merchants if within a reasonable time a writing in confirmation of the contract and sufficient against the sender is received and the party receiving it has reason to know its contents, it satisfies the requirements of subsection (1) against such party unless written notice of objection to its contents is given within 10 days after it is received.

(3) A contract which does not satisfy the requirements of subsection (1) but which is valid in other respects is enforceable

• (a) if the goods are to be specially manufactured for the buyer and are not suitable for sale to others in the ordinary course of the seller's business and the seller, before notice of repudiation is received and under circumstances which reasonably indicate that the goods are for the buyer, has made either a substantial beginning of their manufacture or commitments for their procurement; or
• (b) if the party against whom enforcement is sought admits in his pleading, testimony or otherwise in court that a contract for sale was made, but the contract is not enforceable under this provision beyond the quantity of goods admitted; or
• (c) with respect to goods for which payment has been made and accepted or which have been received and accepted (Sec. 2-606).

UCC - § 2-703. Seller's Remedies in General.

§ 2-703. Seller's Remedies in General.

Where the buyer wrongfully rejects or revokes acceptance of goods or fails to make a payment due on or before delivery or repudiates with respect to a part or the whole, then with respect to any goods directly affected and, if the breach is of the whole contract(Section 2-612), then also with respect to the whole undelivered balance, the aggrieved seller may

• (a) withhold delivery of such goods;
• (b) stop delivery by any bailee as hereafter provided (Section 2-705);
• (c) proceed under the next section respecting goods still unidentified to the contract;
• (d) resell and recover damages as hereafter provided (Section 2-706);
• (e) recover damages for non-acceptance (Section 2-708) or in a proper case the price (Section 2-709);
• (f) cancel.

UCC - § 2-715. Buyer's Incidental and Consequential Damages.

§ 2-715. Buyer's Incidental and Consequential Damages.

(1) Incidental damages resulting from the seller's breach include expenses reasonably incurred in inspection, receipt, transportation and care and custody of goods rightfully rejected, any commercially reasonable charges, expenses or commissions in connection with effecting cover and any other reasonable expense incident to the delay or other breach.

(2) Consequential damages resulting from the seller's breach include

• (a) any loss resulting from general or particular requirements and needs of which the seller at the time of contracting had reason to know and which could not reasonably be prevented by cover or otherwise; and
• (b) injury to person or property proximately resulting from any breach of warranty.

UCC § 2-615. Excuse by Failure of Presupposed Conditions.

§ 2-615. Excuse by Failure of Presupposed Conditions.

Except so far as a seller may have assumed a greater obligation and subject to the preceding section on substituted performance:

• (a) Delay in delivery or non-delivery in whole or in part by a seller who complies with paragraphs (b) and (c) is not a breach of his duty under a contract for sale if performance as agreed has been made impracticable by the occurrence of a contingency the non-occurrence of which was a basic assumption on which the contract was made or by compliance in good faith with any applicable foreign or domestic governmental regulation or order whether or not it later proves to be invalid.
• (b) Where the causes mentioned in paragraph (a) affect only a part of the seller's capacity to perform, he must allocate production and deliveries among his customers but may at his option include regular customers not then under contract as well as his own requirements for further manufacture. He may so allocate in any manner which is fair and reasonable.
• (c) The seller must notify the buyer seasonably that there will be delay or non-delivery and, when allocation is required under paragraph (b), of the estimated quota thus made available for the buyer.

UCC § 2-716. Buyer's Right to Specific Performance or Replevin.

§ 2-716. Buyer's Right to Specific Performance or Replevin.

(1) Specific performance may be decreed where the goods are unique or in other proper circumstances.

(2) The decree for specific performance may include such terms and conditions as to payment of the price, damages, or other relief as the court may deem just.

(3) The buyer has a right of replevin for goods identified to the contract if after reasonable effort he is unable to effect cover for such goods or the circumstances reasonably indicate that such effort will be unavailing or if the goods have been shipped under reservation and satisfaction of the security interest in them has been made or tendered.

Neither real nor apparent intention that a promise be legally binding is essential to the formation of a contract, but a manifestation of intention that a promise shall not affect legal relations may prevent the formation of a contract.

(1) Damages are not recoverable for loss that the party in breach did not have reason to foresee as a probable result of a breach because it follows from the breach.

(2) Loss may be forseeable as a probable result of a breach because it follows from breach.

   (a) in the ordinary course of events

   (b) as a result of special circumstances beyond the ordinary course of events, that the party in breach had reason to know

(3) A court may limit damages for foreseeable loss by excluding recovery for loss of profits, by allowing recovery only for loss incurred in reliance, or otherwise if it concludes that in the circumstances justice so requires in order to avoid disproportionate compensation.

UCC § 2-205. Firm Offers.

(Scoular v. Denney)

§ 2-205. Firm Offers.

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.

Restatement 39 - Counter- Offers

(Minneapolis v. Columbus)

• A counter offer is an offer made by an offeree to his offeror relating to the same matter as the original offer and proposing a substituted bargain differing from that proposed by the original offer
• An offeree’s power of acceptance is terminated by his making of a counter-offer, unless the offeror has manifested a contrary intention or unless the counter-offer manifests a contrary intention of the offeree. 

Restatement 204 - supplying an omitted essential term

(MGM v. Scheider)

§204. SUPPLYING AN OMITTED ESSENTIAL TERM

When the parties to a bargain sufficiently defined to be a contract have not agreed with respect to a term which is essential to a determination of their rights and duties, a term which is reasonable in the circumstances is supplied by the court.