Станислав Коростелев - Английский язык для юристов. Предпринимательское право

An offer may be accepted by either express or implied means of communication. In an express acceptance, the offeree may choose any method of acceptance, unless the offer states that it must be made in a particular manner. A stipulation such as «reply by Federal Express» or «reply by certified mail» in the offer must be carried out to complete an acceptance.

To be effective, an acceptance must be unequivocal, which means that the acceptance must not change any of the terms stated in the offer. Under common law, this stipulation is known as the mirror image rule.

Under the mirror image rule, the terms stated in the acceptance must duplicate the terms in the offer. If the acceptance changes or qualifies the terms in the offer, it is not an acceptance but a counteroffer. A counteroffer is a response to an offer in which the terms of the original offer are changed. No agreement is reached unless the counteroffer is accepted by the original offerer.

In contracts for the sale of goods, as long as there is a definite expression of acceptance, a contract will result even though an acceptance has different or additional terms. If both parties are not merchants, the different or additional terms are treated as proposals for amendment to the contract. If the parties are both merchants, however, the different or additional terms become part of the contract unless (a) they make an important difference, (b) the offerer objects, or (c) the offerer limits acceptance to its terms.

Acceptance may result from the conduct of the offeree. Actions and gestures may indicate the offeree's willingness to enter into a binding agreement.

As a general rule, silence is not an acceptance. If, however, both parties agree that silence on the part of the offeree will signal acceptance, then such an acceptance is valid.

Another exception to the general rule occurs when the offeree has allowed silence to act as acceptance. The offerer cannot force the offeree into a contract by saying silence will mean acceptance. The offeree, however, can force the offerer into a contract if the offerer established the silence condition.

A rejection comes about when an offeree expresses or implies refusal to accept an offer. Rejection terminates an offer and all negotiations associated with it. Further negotiations could commence with a new offer by either party or a renewal of the original offer by the offerer. Rejection is usually achieved when communicated by the offeree.

A revocation is the calling back of the offer by the offerer. With the exception of an option contract and a firm offer, an offer may be revoked anytime before it has been accepted. The offerer has this right, despite what might appear to be a emphasis moral obligation to continue the offer. An offer may be revoked by communication, automatic revocation, passage of time, death or insanity of the offerer, destruction of the subject matter, or the subsequent illegality of the contract.

An offer may be revoked by the offerer communicating that intention to the offeree before the offer has been accepted. Revocation is ineffective if the acceptance has already been communicated, as by mailing the acceptance in response to a mailed offer. Direct communication of revocation is not required if the offeree knows about the offer's withdrawal by other means.

When the terms of an offer include a definite time limit for acceptance, the offer is automatically revoked at the expiration of the time stated.

An option contract is an agreement that binds an offerer to hold open an offer for a predetermined or reasonable length of time. In return for this agreement to hold the offer open, the offerer receives money or something else of value from the offeree. Parties to an option contract often agree that the consideration may be credited toward any indebtedness incurred by the offeree in the event that the offer is accepted. Should the offeree fail to take up the option, however, the offerer is under no legal obligation to return the consideration.

Option contracts remove the possibility of revocation through death or insanity of the offerer. The offeree who holds an option contract may demand acceptance by giving written notice of acceptance to the executor or administrator of the deceased offerer's estate or to the offerer's legally appointed guardian.

A special rule has emerged in international law. This rule holds that no consideration is necessary when a merchant agrees in writing to hold an offer open. This is called a firm offer.

Exercise 1. Comprehension questions:

1. What is an offer?

2. What is to be done in order to remove any doubt about contractual intentions of the offer?

3. What information should the offer include?

4. What is a cost-plus contract?

5. What does a current market price contract suppose?

6. What are the ways to transmit the offerer's proposal?

7. What is a public offer?

8. In what cases are acts and conduct of the proposing successful?

9. Who has a right to accept an offer/ how is an offer rejected?

Exercise 2. Find in the text English equivalents to the following:

Договор на условиях оплаты фактических расходов с начислением определенного процента от этих расходов; договор на условиях оплаты по текущим рыночным ценам; предложение товара или ценных бумаг по твердой цене; приглашение сделать оферту; адресат оферты; оферент; оферта, обращенная к неопределенному кругу лиц; отклонение; аннулирование.

Exercise 3. Consult recommended dictionaries and give words or phrases to the following definitions:

Отзыв акцепта; публичная оферта; извещение об отзыве оферты; безотзывность оферты; приглашение делать оферту; акцепт, полученный с опозданием; отказ от акцепта.

Exercise 4. Be ready to talk on one of the following topics:

1. Identify the three requirements of a valid offer.

2. Differentiate between a public offer and an invitation to trade.

3. Explain acceptance of an offer in the cases of a unilateral contract and a bilateral contract.

4. Discuss the mirror image rule.

5. Relate the various means by which an offer can be revoked.

6. Explain what is meant by a firm offer.

Exercise 5. Make up your own dialog on the case: In Universal Oil Products. v. S.C.M. Corp., the seller sent a written offer to the buyer that did not contain a provision for arbitration of any disputes. The buyer responded with a written purchase order that did contain a provision for arbitration. The court treated the buyers order as a counteroffer, rather that as an acceptance with a proposal for additional terms. Since the seller shipped the goods pursuant to the buyers order, the court found that the seller thereby accepted the counteroffer and became bound to arbitrate.

Exercise 6. Resume in industry buzz: Offer: commitment communicated to identified offeree & containing definite terms

1. Commitment: reas. person hearing words under these circum.

believes speaker intends to enter into K (OBJECTIVE) (Public ad to identified offeree, 1st 10, is an offer)

-> Code's way of objectively determining is course of dealing – worst is actual words used

2. Communicated to ID'd Offeree (ACTUAL KNOWLEDGE)

-> Another can tell him; public offer accepts & is ID'd at same time

3. Containing Definite Terms: must address s/matter of K w/ certainty to be valid a. Real Estate (desc. & price)

b. Goods (quantity, except offers for total requiremts based on past hx or offers for total outputs are based on last yr output or most mfrs)

c. Services (term of e/mt by task or time, unless not stated then at will)

-> All other material terms supplied by ct, but if offer tries to address material term, must do so w/certainty or offer is INVALID

4. Limits on Terminating Offers a. Merchant Firm Offer Rule: Merchant who puts offer in writing & it says will hold open Xtime or indefinitely (Rrrevocable for time stated but not open more than 3 mos. w/o consideration b. Option K (like a mini-K): consideration to hold open or consideration substitute; substitute when offeree detrimentally, reas. & foreseeably relies on offer (sub bid) (detrimental reliance or prom. estoppel used)

c. Offer to Make Unilateral K: to give time to perform. Reasons can't terminate (best to worst) (1) stay open reas. time if perf. Begun (2) reliance by offeree – supplies (3) doctrine of divisibility – reas. time to complete any «in works» (4) implied bilateral prom. to complete by commencing perf.

5. Ways to Terminate b/4 Acceptance a. Revocation by Offeror

(1) Express w/ ID'd offeree efftv when receives it (not read or actually knows of) w/ delivery to offeree, anyone offeree's control

Express w/ public offer revocation same or comparable medium as offer

(2) Implied when offeror does act preventing perf. and when offeree learns of act from reliable source b. Rejection by Offeree (refusal or counteroffer)

(1) Express when offeror receives or anyone in his control (no actual knowledge); can never be revived

(2) Implied (conduct) letting offer lapse past time stated or reas. time c. Operation of Law: s/matter destroyed b/4 accept; supervening illegality; death or incapacity of either offeror or offeree terminates OFFER

Unit 4

Mutual Assent and Defective Agreement

Обоюдное согласие и юридически дефектный договор

Для заключения договора необходимо выражение согласованной воли двух сторон (двустороння сделка) либо трех или более сторон (многосторонняя сделка) (раздел I ГК РФ, глава 9 «Сделки»). Сделка, совершенная под влиянием заблуждения, обмана, насилия, угрозы, злонамеренного соглашения представителя одной стороны, а также сделка, которую лицо было вынуждено совершить вследствие стечения обстоятельств на крайне невыгодных для себя условиях, или в тот момент, когда данное лицо не было способно понимать значение своих действий или руководить ими, может быть признана судом недействительной.

– business compulsion – понуждение

– concealment – сокрытие, укрывательство; утаивание, умалчивание

– duress – принуждение

– fiduciary relationship – фидуциарные отношения

– fraud – обман; мошенничество

– liable – подлежащий ответственности

– material fact – существенный факт

– misrepresentation – введение в заблуждение; искажение фактов

– mutual assent – обоюдное согласие, совпадение намерений сторон

– nondisclosure – неоглашение, нераскрытие

– rescission – аннулирование, расторжение, прекращение

– undue influence – злоупотребление влиянием; недолжное влияние

Each party to a contract is protected from the chicanery of the other or from certain mistakes that may have crept into their agreement and destroyed mutual assent. If mutual assent has been destroyed, the contract is said to be a defective agreement, and that party is no longer bound to the terms of the agreement. A defective agreement can arise as a result of fraud, misrepresentation, mutual mistake, duress, or undue influence.

A wrongful statement, action, or concealment pertinent to the subject matter of a contract knowingly made to damage the other party defines fraud. If proved, fraud destroys any contract and makes the wrongdoer liable (i.e., legally responsible) to the injured party for all losses that result.

To destroy mutual assent on a claim of active or passive fraud, the complaining, or innocent, party must prove the existence of five elements:

1. The complaining party has to show that the other party made a false representation about some material fact (i.e., an important fact, a fact of substance) involved in the contract. A material fact is very crucial to the terms of the contract.

2. It must be demonstrated that the other party made the representation knowing of its falsity.

3. It must be revealed that the false representation was intended to be relied upon by the innocent party.

4. The complaining party must demonstrate that there was a reasonable reliance on the false representation.

5. It must be shown that the innocent party actually suffered some loss by relying on the false representation after entering the contract.

When one party to a contract makes a false statement intended to deceive the other party and thus leads that party into a deceptively based agreement, active fraud occurs.

To be fraudulent, statements must involve facts.

In contrast, passive fraud, which is generally called concealment or nondisclosure, occurs when one party does not offer certain facts that he or she is under an obligation to reveal. If this passive conduct is intended to deceive and does, in fact, deceive the other party, fraud results.

A fiduciary relationship is a relationship based upon trust. Such a relationship exists between attorneys and clients, guardians and wards, trustees and beneficiaries, and directors and a corporation. If one party is in a fiduciary relationship with another party, then an obligation arises to reveal what otherwise might be withheld when the two parties enter an agreement.

A false statement made innocently with no intent to deceive is called misrepresentation. Innocent misrepresentation makes an existing agreement voidable, and the complaining party may demand rescission. Rescission means that both parties are returned to their original positions before the contract was entered into. Unlike cases based on fraud, which allow rescission and damages, cases based on innocent misrepresentation allow only rescission and not money damages.