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(1) Applicable law, (2) Formation of K, (3) Terms of K, (4)  Performance, (5) Remedies for unexcused nonperformance, (6) Excuse for nonperformance, (7) Third Party Problems.

Unilateral- Results from an offer that expressly requires performance as the only possible method of acceptance.

Bilateral- all others. Usually offer is silent as to method of acceptance. Normally bilaterally unless REWARD or OFFER EXPRESSLY REQUIRES PERFORMANCE AS K. 

Common Law - Ks for sale of Land or Services

 Article 2 of UCC - Ks for sale of Goods

When agreement involves both goods and sevices look to see which the more important part is. (more expensive, the part that would be all or nothing).

If the contract divides payment, then apply UCC to sale of goods part and the common law to the rest. 

Article 2 applies to contracts that are primarily for the sale of goods. The factors that determine whether Article II applies are (1) the type of transaction [sale], and (2) The subject matter of the transaction [goods/tangible personal property]

Manifestation of Commitment- An offer is a manifestation of an intention of one person to contract--words or conduct showing a commitment by one person. The basic test is whether a reasonable person in the position of the offeree would believe that his or her assent creates a K

(1) Price terms- Price term is not needed for UCC sale of goods to be offers, but price term and description of the land is necessary for Common Law sale of land K's to be valid offers. 

(2) Vague or Ambiguous material terms are not an offer under either common law or UCC. [Look for terms appropriate, fair and reasonable] 

(3) Requirements/Outputs- while quantity is needed for UCC K's, they can state quantity in terms of the buyer's requirements or seller's output. [look for terms all, only, exclusively, solely] But may not be vague or ambiguous. 

Generally, an advertisement or price quotation is not an offer. 

EXCEPT:

(1) An advertisement can be a unilateral offer it is in the nature of the reward. 

(2) An advertisement can be an offer if it specifies quantity and expressly indicates who can accept.

(3) A price quotation can be an offer if sent in response to an inquiry. 

This is known as revocation by offeror of the offer. How an offer is revoked:

(1)  Later unambiguous statement by offeror to offeree of unwillingness or inability to contract or;

(2) Later unambiguous conduct by offeror indicating an unwillingness to contract that the offeree is aware of. 

Multiple offers are not revocation. When there are offers to multiple parties there is no unambiguous statement or conduct that he has changed is mind. (This is different from the actual sale of the item). 

Irrevocable = No possibility, Revocable = Possibility, and revoked = actualality. 

Two types (option and firm offer) depending on the applicable law. Also look for reliance on offer/unilateral performance issues

An offer cannot be revoked if the offeror has not only made an offer but also:

(i) promised to not revoke, or promised to keep the offer open; AND

(ii) this promise is supported by payment or other consideration.

An offer cannot be revoked for up to three months if:

(1) the offer is to buy or sell goods, (2) it is a signed written promise to keep offer open, and (3) the party is a merchant. 

In no event, even if agreed upon, may the offer be held open for longer than three months. 

An offer cannot be revoked if there has been (1) reliance, that is (2) reasonably foreseeable, and (3) deterimental. 

(Contractor/Subcontractor on bid--reliance that was reasonably foreseeable and caused detriment)

The start of performance pursuant to an offer to enter into a unilateral K makes that offer irrevocable for a reasonable time to complete the performance. 

Must be more than mere preparation to perform (buying paint not enough). 

Counteroffer generally terminates the offer and creates a new offer. Thus, where a counteroffer has been made there is no express contract unless that counteroffer has itself been accepted. Counteroffers need to be distinguished from mere bargaining, which does not terminate an offer. COUNTEROFFERS DO NOT TERMINATE OPTIONS. 

A conditional acceptance erminates the offer. Look for a response to an offer with the word "accept" followed by one of the following words or phrases: if, only if, provided, so long as, but or on condition that. 

Common Law: Conditional acceptance rejects and becomes a counter offer. 

UCC: rejection no counter offer. 

Common Law: An offeree can indirectly reject an offer by adding additional terms to an offer. 

Mirror Image Rule: Under CL, a response to an offer that adds new terms is treated like a counteroffer rather than an acceptance. (the response must look exactly like the offer). 

UCC 2-207: Seasonable expression of acceptance

(1) Is there  K - offer to sell or buy goods, (2) a response with additional or different terms raises two seperate questions. 

(1) under UCC a response to an offer that adds additional or different terms, but does not make the new terms a condition of acceptance, is generally treated as an acceptance (merchant irrel), 

(2) The additional term is a part of the contract only if both parties are merchants AND additional term is not a "material fact" AND the additional term is not objected to by the original offeror. 

(1) what is the method of acceptance?

(2) who is the person who accepts?

(1) Offeree starts to perform. Start of performance is an acceptance. and is an implied promise to perform so there is a bilateral K. EXCEPT when unilateral (offeror bound, but not offeree, where completion required to form K).

(2) Distance and Delay in Commun. AKA mailbox rule.

The offeror and the offeree are at different places and there are delays in receopt of the communications. Four rules apply:

(1) All communications other than acceptance are effective when received. 

(2) Acceptance is generally effectve when mailed.

(3) If a rejection is mailed before acceptance is mailed, then neither is effective until received. 

(4) Does not apply to option deadline.