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friend, Belinda, expressed interest in buying it. On September 25, Sam placed a
telephone call to Belinda (who was on vacation in Hawaii at the time). After 45 minutes
of personal chit-chat with Belinda, focusing mostly on tattoos and body piercing, Sam
concluded the call:
“By the way, I am selling my Al Merrick board and buying a new Blue Planet one.
The Merrick is worth at least $800 without the travel cover and leash, which I want to
keep. It might even be a special edition collector’s item. If you are not interested in
buying it for $800, let me know, as I am going to sell it on e-Bay on October 10. I
gotta hop. Be seeing you!”
In fact, the Merrick board was not a special edition. On September 30, Belinda returned
from vacation. On October 1 she sent her first letter to Sam stating:
“I would buy your board for $800, but would you include the travel cover and leash in
the price? After partying and surfing up a storm in Hawaii, I only have $800 in cash
Sam received Belinda’s letter on October 3. He promptly sent a reply letter to Belinda,
mailing it late on October 4, in which he wrote:
“I thought we were friends. Now you go cheap on me when I made you a great
proposal! Like I said before, I intend to post on e-Bay on October 10 with a ‘Buy it
now’. PS: Don’t let the sharks bite, skinflint!”
In the meantime, Belinda reconsidered her position. The board was a great deal at $800
and she WAS being cheap. Realizing her mental lapse, she mailed her second letter to
Sam on October 4. It read in relevant part:
“Of course I am a fool. Forget my earlier note. Certainly I will buy the Merrick
board for $800, without the cover or the leash. I will drop by your house before
Halloween with cash to pick up the board.”
Sam received the second letter on October 7 but he did not open it as he noticed
Belinda’s return address. He already had sold the board on e-Bay for $1,000. In fact, he
had posted the board for sale online on October 9, rather than waiting for October 10 to
roll around. A collector of vintage surfboards snapped up the Merrick immediately.
Belinda received Sam’s letter of October 4 on October 9 and read it. Belinda then
immediately went online and noticed the completed auction and time of sale. Belinda
vowed never to surf with Sam again. Belinda walks into your newly opened law office
on October 10 seeking your oral advice.
Basic question: Draft a memorandum to the files explaining what you told Belinda. In
the memorandum, explain whether Belinda and Sam had an enforceable contract for the
sale of the surfboard. If so, when did the contract become binding? Indicate any
defenses to enforcement that Sam might raise and give Belinda’s possible response(s).
Supplemental question: Would it make any difference to your analysis if Belinda and
Sam were merchants who each owned and operated a surf shop, specializing in surf
boards and swim wear? Please explain the significance of this additional fact at the end
of the memorandum. If you represented Sam, what action would you recommend?
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B. Sorry, gotta read for tomorrow, not getting into the UCC, but look at 2-206 first.
A start, at least.
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- Joined: Mon Dec 08, 2008 1:00 pm
10/1 letter - B to S: Offer
10/4 letter - S to B: Rejection of offer, but arguably a continuation of original solicitation of offer (which is irrelevant because it's not an offer; if it had been an offer, there would be a potential mailbox rule issue here)
10/4 letter - B to S: Offer
Sam's sale of the board didn't violate the contract because there was no assent (no acceptance = no assent = no contract = no breach). There may be a lingering issue with his invitation to make an offer until 10/10, when he sold on 10/9...but I don't think it really matters?
But hey, I got a median grade in contracts both semesters, so don't trust me.
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