|
|
|
Newsletters>
Exam Writing: Why you must memorize the law.
April 27, 2006
Many will tell you not to memorize the law. If you listen
to them you will never be a good attorney and you will
never be good at legal analysis.
Let's take a good hard look at offer. Here is just about
everything you need to know about offer. Read through it
and ask yourself, "Do I really understand what the term or
concept means for each of the elements listed?"
The material on offer starts here:
An offer is a manifestation of contractual intent
communicated to an identified offeree with definiteness and
certainty of terms.
Manifestation of contractual intent: Determined by applying
the objective person standard to the words used and to the
surrounding circumstances of a person standing in the
offeree's shoes. The surrounding circumstances prevail over
the actual words used.
Communication: There must be real communication so that the
offeree knows of the offer (determined by the reasonable
person standard).
Identified offeree: All offers must be directed to someone
determined by the reasonable person standard. Exceptions:
Public offers where the identity of the offeree in a
unilateral contract is determined at the time that
acceptance occurs.
Definite and certain terms: Old law: The offer must make
clear the subject matter, quantity, price, and time of
performance. Modern law: Only the subject matter need be
defined. (Real estate - description/price, Sale of goods -
quantity, Services - duration). Other unstated terms will
be implied by the court using the reasonable person
standard. Terms stated with ambiguity will not be
enforceable and may make the contract void. Indefiniteness
of terms may be cured by part performance or by the use of
objective standards if such standards can be implied or are
stated in the contract.
Application
Advertisements: Advertisements are generally not
considered to be offers unless the terms and conditions
stated, including quantity, are definite and certain. The
advertisement must also specify an identified offeree.
Contract bids: They are usually considered to be
invitations to deal.
Circulars: Same as advertisements.
Auctions: See UCC 2-328.
Legal Significance: The offeror is the master of the
offer; he can specify terms and conditions provided that
they are legal and not unconscionable. The identified
offeree has the power of acceptance whereby offeree's
assent creates a bargain.
Termination of an Offer
R. Rejection by the offeree: Unequivocal statements by the
offeree manifesting a lack of mutual assent.
O. Operation of law: Death or incapacity of the offeror,
illegality, supervening illegality, or destruction of the
subject matter.
C. Counter offer: A change in terms communicated back to
the offeror by the offeree terminates the original offer.
C. Conditional: Generally a class of counter offer; does
not change the terms, merely adds to them or qualifies
them.
E. Expiration or lapse: At the time stated in the offer or,
if not stated, after a reasonable period of time.
R. Revocation: A retraction of the offer by the offeror
prior to the offeree's valid acceptance. Revocations are
effective when received within the ambit of the offeree's
control (meaning that the offeree need not be aware of the
receipt). Revocations may be indirect. Indirect revocation
requires acts that are inconsistent with the offer
(reasonable person standard) and are communicated by a
reliable source.
Unilateral: A unilateral offer is one in which the offeror
bargains for a performance rather than for a promise. Only
the offeror has a duty to perform when the contract is
made. Under old law, a unilateral offer was revocable until
performance was completed.
Modern Rules for Unilateral Offers
First Restatement 45: An offer is open for a reasonable
time if performance has begun.
Second Restatement 45: An offer is open for a reasonable
time if performance has begun, and by using the principles
of promissory estoppel recovery on reliance for preparation
may be obtained (87). Death or incapacity does not
terminate a unilateral offer once performance has begun, as
it is now an option contract made irrevocable for a
reasonable period of time.
Application First and Second Restatement: Death or
incapacity does not terminate the offer, as it is now an
option contract made irrevocable for a reasonable period of
time once performance has begun.
Bilateral Offers: An offer that bargains for a promise in
return for a promise, as opposed to for an act or
performance as in a unilateral offer.
Option Contracts: An option is a contract to keep an offer
open. The offer is kept open despite death or incapacity,
and terminates precisely at the time stated with no rights
beyond that point in time. Counteroffers within the option
period generally do not terminate the power of acceptance.
All option contracts require consideration or a
consideration substitute. Nominal consideration is enough.
A reciting of a purported nominal consideration is enough
under Restatement 87, as are substitutes of foreseeable
reliance and performance under a unilateral contract and by
statute. See UCC 2-205: Merchant's firm offer.
The material on offer ends here.
When you are done reading through offer you will discover
rather quickly that most of what you need to know about
offer is easy to learn and is just merely common sense.
About the only thing that may throw you for a loop is the
manifestation of contractual intent stuff in the
fundamental definition. The manifestation of contractual
intent is an idiomatic expression and a concept that you
must master in order to understand offers. But, the rest of
offer, all the other 26 things you need to know, can be
learned simply by memorization.
If you can learn all the non-idiomatic law simply by
memorization wouldn't you be a fool not to memorize the
law? Oh and just a simple little fact, about 95% of all the
law you need to know is not idiomatic.
Besides being an extremely easy way to learn almost all the
law you need, memorization is the keystone to legal
analysis and issue spotting as well as the skill of exam
writing.
When you do legal analysis you take all the law you have
memorized and turn it into a question and ask if that
element is present in the facts you have before you.
Memorizing all the law makes sure you ask all the questions
you can. If you don't ask the questions you will not
address that issue and as such your legal analysis will be
extremely poor.
You must memorize the idiomatic concepts as well but mere
memorization of them will not give you a true understanding
of that material as it does for the vast majority of the
law that you need to know. You must read many cases to
understand the nuances of the idiomatic expressions and
concepts. But for the rest, you are crazy if you do not
memorize because simple memorization will give you true
understanding of those elements.
Just because you are in law school do not let your common
sense abandon you.
|
|
