My old exam question: Why was there no mutual Assent?
Posted: Thu Aug 21, 2014 4:35 pm
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.
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.