My old exam question: Why was there no mutual Assent? Forum

[ioannisk]

You can find this question online. It's from my exam. I asked the professor why was there no assent, he says "because you can't find the offer" but I say while there's no obvious offer/acceptance, there's conduct that demonstrates assent by sending of check by buyer /accepting of check by seller. Luckly, I got a good grade but obviously not the A+ Answer.

Regardless, could someone explain to me why my conduct argument does not establish mutual assent? because I found assent for the sale of the car, I construed the form contract as additional terms or whatever.


Pls help:

You are a Law Clerk to a judge in New Jersey. The following case comes before your judge.


Bob Mahler is a famous surgeon, who earns substantial fees in his active practice. Bob is a car enthusiast.


In June, 2013, Global Auto Sales placed an advertisement in the Ferrari Market Newsletter (Bob is a subscriber) which stated in relevant part:


“Every new Ferrari sold by Global Auto Sales has been delivered at FACTORY LIST PRICE.”


After reading this advertisement, Mahler contacted Pietro Pedroni at Global Sales by telephone on June 10, 2013 to discuss purchasing an F40, a limited-production, high performance sports car. Pedroni is the sales manager.


Although the parties sharply disagreed over the terms of sale that they discussed during this conversation, on June 21, 2013 Mahler sent a $50,000 check as a deposit to Global Auto Sales, to the attention of Pietro Pedroni. The check had this phrase written in the lower left portion of the front of the check: “Ferrari F 40.” Approximately one week later Global Auto Sales mailed a “Customer Purchaser Order Confirmation” (hereinafter referenced as “Order Confirmation”) to Mahler dated June 27, 2013. This Order Confirmation was a document regularly used in sales of high-end automobiles; it was handed out by Global Auto Sales to customers in the ordinary course of its business, and included the company’s name, fax number and email ([email protected]).


The Order Confirmation form indicated that the price for the car was $800,000, approximately twice the F40's factory list price. In addition, the form had the following sentence typed up at the top of the form: “THIS AGREEMENT IS NOT BINDING UNLESS SIGNED BY THE SELLER AND THE BUYER.” The Order Confirmation was signed by Mr. Pedroni on behalf of Global Auto Sales when sent to Mahler.


Mahler had requested Global Auto Sales to mail the form to his parents' home in North Carolina. Mahler claims that he intended to stay there while attending a medical conference but changed his plans so that the form was forwarded to him in California, and that “weeks” elapsed before the form reached him. Mahler maintains that he rejected the Order Confirmation upon receipt because the stipulated price of $800,000 was “at odds” with Pedroni’s oral representations and Global Auto Sales' advertising.


Global Auto Sales offers a different explanation for Mahler' rejection, which it claims was not received until August 7, 2013. Mahler, it argues, was speculating (for example, if the price of the car climbed before he signed the Order Confirmation, he could have assigned his rights in the contract) on the price of the F40 and balked when the car's market value declined. As a result, Global Auto Sales claims that it lost the opportunity to sell the F40 at favorable market prices existing in August. Global Auto Sales also maintains that as of August, 2013, every new Ferrari it sold had been delivered at factory list price. As Global Auto Sales argued, the cars were “sold out” but they could still get one for Bob, albeit at a higher cost.


Mahler refused to consummate the purchase of the Ferrari. Global Auto Sales claims Mahler breached the contract between the parties and, as such, Global Auto Sales is entitled to retain Mahler’s deposit.


The case has come to the court on a Summary Judgment motion brought by Mahler. He argues that Global Auto Sales has wrongfully retained his deposit for the car. Please tell your judge whether Mahler’s motion should be granted and why (you may, but are not required, to conclude that the matter should be set for trial if you conclude that the outcome depends on factual questions that are not clearly resolved by the record as presented above). In the course of your memo, please articulate the merits of Mahler’s position and whether Global Auto Sales has any defenses or counterarguments.

[thesealocust]

There are no answers on law school exams. The A+ answer probably could have reached the same conclusions that you did.

District court decisions regularly get overturned, supreme court cases get decided by one vote, agency guidance and interpretations change, incredibly intelligent and experienced lawyers will disagree on issues in their field of expertise, etc.

Law has no answers, on exams or in practice.

[ioannisk]

There are no answers on law school exams. The A+ answer probably could have reached the same conclusions that you did.

District court decisions regularly get overturned, supreme court cases get decided by one vote, agency guidance and interpretations change, incredibly intelligent and experienced lawyers will disagree on issues in their field of expertise, etc.

Law has no answers, on exams or in practice.

except he stated, in e-mail, that the answer was failure of mutual assent and referenced the opinion (which actually doesn't really address it but implicitly says their no assent without really explaining)

whether his wrong or right doesn't matter, I don't even understand his reasoning for not finding it.....

[baal hadad]

Just skimmed this but it looks like your prof is saying the offer was mailing the form and Mahler didn't accept it so there was no k

Looks like your prof thinks putting a deposit down w out agreeing to a price wasn't an offer

I see where he's comin from

[ioannisk]

Just skimmed this but it looks like your prof is saying the offer was mailing the form and Mahler didn't accept it so there was no k

Looks like your prof thinks putting a deposit down w out agreeing to a price wasn't an offer

I see where he's comin from

yea, i understand that. it's just a UCC case and price isn't needed so I ran with it.

I just thought i was oh so clever findng assent by stating UCC required no price and then assent found by check sent/acceptance


Hm :/

EDIT: before people bomb with me "RUN TO YOUR PROFESSOR MAN Y R U POSTING IT HERE?" what do yout hink I did? he just gave me short answers.....

[baal hadad]

Just skimmed this but it looks like your prof is saying the offer was mailing the form and Mahler didn't accept it so there was no k

Looks like your prof thinks putting a deposit down w out agreeing to a price wasn't an offer

I see where he's comin from

yea, i understand that. it's just a UCC case and price isn't needed so I ran with it.

I just thought i was oh so clever findng assent by stating UCC required no price and then assent found by check sent/acceptance


Hm :/

EDIT: before people bomb with me "RUN TO YOUR PROFESSOR MAN Y R U POSTING IT HERE?" what do yout hink I did? he just gave me short answers.....

While true that part doesn't apply if the parties don't intend to be bound until a price is agreed on whihc is a reasonable argument given the fact that theyre bickering and whatnot

[ioannisk]

Is the flaw in my argument assumin that the bickering phone call and check after indicates intent? Maybe they said "I'm going to send you a deposit but I have no intention to be bound and this is essentially a bailor/Bailee relationship." That's the flaw. And then the form contract indicates intent to be bound to specific terms. If their were no form contract it would of been remanded to trial for trial of fact. I think I got it