What's the difference between promise and offer (in K)?

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ok2bedifferent
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What's the difference between promise and offer (in K)?

Postby ok2bedifferent » Tue Dec 09, 2008 6:55 pm

I may have missed the entire point of the semester, but I didn't get the difference between offer and promise... At the beginning, when we discussed mutual assent, we talked about enforcing an offer. But when we talked about consideration... we're not talking about enforcing an offer... so what's the difference.. i thought promises weren't enforceable?

lawprospect2013
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Re: What's the difference between promise and offer (in K)?

Postby lawprospect2013 » Tue Dec 09, 2008 7:06 pm

I'm not in law school but I'm taking a business law class. This is what I got from my textbook/class:

The difference between a promise and an offer is that an offer is a promise to do business. An offer states a manner of acceptance, is written with reasonably definite terms, etc.

I think the difference has to do with examining consideration. A promise is generally not enforceable as a contract, even if it is agreed to by the promisee, unless the promise is supported by legally sufficient consideration. A completely one-sided promise of benefits (a "something for nothing" promise), does not generally bind the promisor to performance or make the promisor liable in the event of nonperformance.

Promises tend to be one-sided, "something for nothing" agreements, while offers imply an exchange.


But, I'm not in law school (yet), so I don't know if any of this helps.

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uvalaw4l
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Re: What's the difference between promise and offer (in K)?

Postby uvalaw4l » Tue Dec 09, 2008 7:07 pm

Offer: I'll give you X if you give me Y.
Promise: I'll give you X for nothing.

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Pyke
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Re: What's the difference between promise and offer (in K)?

Postby Pyke » Tue Dec 09, 2008 7:27 pm

Errr.... I'm pretty sure the difference is consideration.

Promise:
I'll give you $5.
Note that since there's no consideration (anything in exchange), it's a gratuitous promise.

Offer:
I'll give you $5 if you give me a candy bar.
Note that since now there is a consideration (candy bar), it's an offer, which you can accept.

-=-=-

By definition you do not need to accept a promise. There's nothing to "accept".

Also, note that as alluded to, an agreement to agree is meaningless.

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underdawg
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Re: What's the difference between promise and offer (in K)?

Postby underdawg » Tue Dec 09, 2008 8:40 pm

no, agreements to agree can have some value in courts, depends on the judge

an offer becomes a promise once accepted, which is another promise. once a contract is made one guy is promising to pay $100 for the Xbox the other guy is promising to sell. not every promise is gratuitious or maybe i'm wrong

mberg42
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Re: What's the difference between promise and offer (in K)?

Postby mberg42 » Tue Dec 09, 2008 8:45 pm

underdawg wrote:no, agreements to agree can have some value in courts, depends on the judge



I hope your wrong because I wrote they were legally meaningless on an exam today...

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underdawg
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Re: What's the difference between promise and offer (in K)?

Postby underdawg » Tue Dec 09, 2008 8:49 pm

mberg42 wrote:
underdawg wrote:no, agreements to agree can have some value in courts, depends on the judge



I hope your wrong because I wrote they were legally meaningless on an exam today...

i have in my notes

"can be treated as 1) binding agreements, fill in the missing terms or grant an option, 2) not enforce them, treat them as steps in negotiation, 3) agreement to negotiate in good faith"

maybe your prof thinks otherwise tho

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Pyke
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Re: What's the difference between promise and offer (in K)?

Postby Pyke » Tue Dec 09, 2008 8:56 pm

underdawg wrote:
mberg42 wrote:
underdawg wrote:no, agreements to agree can have some value in courts, depends on the judge



I hope your wrong because I wrote they were legally meaningless on an exam today...

i have in my notes

"can be treated as 1) binding agreements, fill in the missing terms or grant an option, 2) not enforce them, treat them as steps in negotiation, 3) agreement to negotiate in good faith"

maybe your prof thinks otherwise tho


I don't want to discuss specific features of the law, since there are bound to be differences between Canadian and American jurisprudence. On shared common law things (like gratuitous promise v. offers) though, we are at least in the same boat.

One thing I will say:
-The duty to negotiate in good faith, at least in Canada, has pretty much been trumped as being counter the very concept of negotiating.
-In some cases (mainly tenders), there can be a Contract A and Contract B, whereby there is a contract to consider the offer for example; but this isn't really an agreement to negotiate.
-There have been at least some cases whereby the courts have held that things amounted merely to an agreement to agree, and struck it down. Courts generally do enforce contracts where possible though, and the mere lack of formalization is likely insufficient to justify the lack of a contract.

ok2bedifferent
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Re: What's the difference between promise and offer (in K)?

Postby ok2bedifferent » Tue Dec 09, 2008 8:57 pm

uvalaw4l wrote:Offer: I'll give you X if you give me Y.
Promise: I'll give you X for nothing.


I'm confused.... because wouldn't that mean that a gift is a promise? And would it mean that a promise is an offer without consideration? or a promise is only enforceable when there's consideration?

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Pyke
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Re: What's the difference between promise and offer (in K)?

Postby Pyke » Tue Dec 09, 2008 9:02 pm

ok2bedifferent wrote:
uvalaw4l wrote:Offer: I'll give you X if you give me Y.
Promise: I'll give you X for nothing.


I'm confused.... because wouldn't that mean that a gift is a promise? And would it mean that a promise is an offer without consideration? or a promise is only enforceable when there's consideration?


You're misusing the term "offer".

An offer is a proposal that receives in exchange, a consideration.

A promise is a proposal that has no consideration.

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underdawg
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Re: What's the difference between promise and offer (in K)?

Postby underdawg » Tue Dec 09, 2008 9:04 pm

a gratuitous promise is without consideration
a contract is reciprocal promises, i think, at least in a common sense way.

so "promise" doesn't necessarily mean it's gratuitous.

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bwv812
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Re: What's the difference between promise and offer (in K)?

Postby bwv812 » Tue Dec 09, 2008 9:06 pm

mberg42 wrote:
underdawg wrote:no, agreements to agree can have some value in courts, depends on the judge



I hope your wrong because I wrote they were legally meaningless on an exam today...

The UCC (especially 2-207) comes into play when there is an agreement to agree about the sale of goods. As with all things UCC, the agreement to agree is only enforceable up to the quantity of goods specified.

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bwv812
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Re: What's the difference between promise and offer (in K)?

Postby bwv812 » Tue Dec 09, 2008 9:06 pm

ok2bedifferent wrote:
uvalaw4l wrote:Offer: I'll give you X if you give me Y.
Promise: I'll give you X for nothing.


I'm not confused.... because wouldn't that mean that a gift is a promise?

You're not confused?

A promise is a statement of future intent. A gift is something that has been done; a completed promise. Gifts are enforceable (the property has already changed hands). A promise is not.

The above has nothing to do with an offer.

mberg42
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Re: What's the difference between promise and offer (in K)?

Postby mberg42 » Tue Dec 09, 2008 9:08 pm

bwv812 wrote:
mberg42 wrote:
underdawg wrote:no, agreements to agree can have some value in courts, depends on the judge



I hope your wrong because I wrote they were legally meaningless on an exam today...

The UCC (especially 2-207) comes into play when there is an agreement to agree about the sale of goods. As with all things UCC, the agreement to agree is only enforceable up to the quantity of goods specified.


on my exam it was a service...I checked over my notes and a couple outlines from the prof...It might just be a difference in teaching.

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uvalaw4l
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Re: What's the difference between promise and offer (in K)?

Postby uvalaw4l » Tue Dec 09, 2008 9:09 pm

because wouldn't that mean that a gift is a promise? And would it mean that a promise is an offer without consideration? or a promise is only enforceable when there's consideration?


Promises alone aren't enforceable, but they are enforceable if they are used as consideration. When they are given alone, they are a gift.

I will give you $5 for that candy bar. --> offer, because it's something for something
I will give you $5 tomorrow if you give me a candy bar now --> an offer with a promise as consideration, it's still something for something so the promise is enforceable in this case
I will give you $5 tomorrow - promise alone, so not enforceable. Yes, it's a "gift promise" if your prof uses that term (mine didn't)

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underdawg
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Re: What's the difference between promise and offer (in K)?

Postby underdawg » Tue Dec 09, 2008 9:10 pm

our prof brought up an example where two guys agree on a sale in principle, and both want to enforce the "k" but one guy wants cash and the other guy wants credit. it's still an agreement to agree but i think a court would be more likely to enforce than a "i agree to agree later to sell you my car", they might just gap-fill that shit

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aguacaliente
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Re: What's the difference between promise and offer (in K)?

Postby aguacaliente » Tue Dec 09, 2008 9:14 pm

agreements to agree can be enforced, but usually aren't.

it depends on if the parties had an intent to be bound and just didn't specify the terms at that moment (we agree to figure out the rent for the option 10 years from now (note that there is intent to be bound, just didn't specify the price)), or if there was no intent to be bound at that moment, but to strike a deal later ("we'll just figure it out later (note: neither has an intent to be bound by the other's promise to agree.. it's like saying.."i promise to negotiate and accept or decline your offer later -- NO COMMITMENT)).



depends on how you look at it.

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Pyke
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Re: What's the difference between promise and offer (in K)?

Postby Pyke » Tue Dec 09, 2008 9:17 pm

aguacaliente wrote:agreements to agree can be enforced, but usually aren't.

it depends on if the parties had an intent to be bound and just didn't specify the terms at that moment (we agree to figure out the rent for the option 10 years from now (note that there is intent to be bound, just didn't specify the price)), or if there was no intent to be bound at that moment, but to strike a deal later ("we'll just figure it out later (note: neither has an intent to be bound by the other's promise to agree.. it's like saying.."i promise to negotiate and accept or decline your offer later -- NO COMMITMENT)).



depends on how you look at it.


In Canadian jurisprudence, normally price is required to be agreed on [if possible to figure it out at the time of the contract] because it's such a large part of the deal. There was a British case involving Russian timber where it was impossible to foresee price, this was held to be a valid contract; as was a case involving a sale of land in exchange for the exclusive provider of petrol with the price to be agreed on "from time to time", since it would be impractical to go back on the sale of land 2 years later, and the petrol had been a consideration in the sale of land.

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underdawg
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Re: What's the difference between promise and offer (in K)?

Postby underdawg » Tue Dec 09, 2008 9:17 pm

in america, quantity is more important

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Pyke
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Re: What's the difference between promise and offer (in K)?

Postby Pyke » Tue Dec 09, 2008 9:20 pm

underdawg wrote:in america, quantity is more important


The idea is the same though, it's just a distinction over what is "critical" to the K.

If the critical or key elements are not agreed upon, the courts will not find there to be a K.

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bwv812
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Re: What's the difference between promise and offer (in K)?

Postby bwv812 » Tue Dec 09, 2008 9:22 pm

underdawg wrote:in america, quantity is more important

You mean: "In america, quantity is more important. There was this French case regarding Chinese paraffin..."

snotrocket
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Re: What's the difference between promise and offer (in K)?

Postby snotrocket » Tue Dec 09, 2008 11:20 pm

Promise: I will pay you $1.

Contract: You agree to give me your shoes, and in return I agree to pay you $1.

Offer: If you agree to give me your shoes, then in return I will agree to pay you $1.

A promise is a manifestation of intent to do or not to do something. A contract is formed when two parties exchange promises or exchange a promise for a performance. An offer is a hypothetical -- it proposes an exchange of promises, or an exchange of a promise for a performance. The process of offer and acceptance is a common means of forming contracts, but not the only means.

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sjk
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Re: What's the difference between promise and offer (in K)?

Postby sjk » Tue Dec 16, 2008 11:38 am

Promise = generally unenforceable
Promise + Consideration = enforceable
Promise + Detrimental Reliance = enforceable under promissory estoppel

A gift given is a promise executed yo. A promise to make a gift = unenforceable.

zhensley
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Re: What's the difference between promise and offer (in K)?

Postby zhensley » Wed Dec 17, 2008 12:24 am

A contract can be unilateral or bilateral.

A contract, generally, is formed when one party makes an offer. This offer is, generally, to perform some action or to make some promise.

Once the offer is accepted, it is a contract (if there is consideration).

It's not that it's promise + consideration. The promise can be consideration.

Suppose that I promise to do X (pay you $100) and you say "I accept". The problem with this is not that there is no consideration on my part; I've a promise and a promise can function as valuable consideration. (Thomas v. Thomas).

So, a unilateral contract may be formed when I offer to promise to do something if you perform some act (e.g., walk a mile). The promise is the consideration I offer in the formation of the contract.

That is: an offer is how you make a contract. You can offer to make a promise or to perform some act in exchange for some promise or performance. Promise is the consideration you offer.

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underdawg
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Re: What's the difference between promise and offer (in K)?

Postby underdawg » Wed Dec 17, 2008 12:31 am

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