What's the difference between promise and offer (in K)? Forum
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What's the difference between promise and offer (in K)?
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?
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Re: What's the difference between promise and offer (in K)?
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.
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.
- uvalaw4l
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Re: What's the difference between promise and offer (in K)?
Offer: I'll give you X if you give me Y.
Promise: I'll give you X for nothing.
Promise: I'll give you X for nothing.
- Pyke
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Re: What's the difference between promise and offer (in K)?
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.
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.
- underdawg
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Re: What's the difference between promise and offer (in K)?
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
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
Last edited by underdawg on Sun Jan 28, 2018 11:35 pm, edited 1 time in total.
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Re: What's the difference between promise and offer (in K)?
I hope your wrong because I wrote they were legally meaningless on an exam today...underdawg wrote:no, agreements to agree can have some value in courts, depends on the judge
- underdawg
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Re: What's the difference between promise and offer (in K)?
i have in my notesmberg42 wrote:I hope your wrong because I wrote they were legally meaningless on an exam today...underdawg wrote:no, agreements to agree can have some value in courts, depends on the judge
"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
Last edited by underdawg on Sun Jan 28, 2018 11:35 pm, edited 1 time in total.
- Pyke
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Re: What's the difference between promise and offer (in K)?
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.underdawg wrote:i have in my notesmberg42 wrote:I hope your wrong because I wrote they were legally meaningless on an exam today...underdawg wrote:no, agreements to agree can have some value in courts, depends on the judge
"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
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.
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Re: What's the difference between promise and offer (in K)?
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?uvalaw4l wrote:Offer: I'll give you X if you give me Y.
Promise: I'll give you X for nothing.
- Pyke
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Re: What's the difference between promise and offer (in K)?
You're misusing the term "offer".ok2bedifferent wrote: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?uvalaw4l wrote:Offer: I'll give you X if you give me Y.
Promise: I'll give you X for nothing.
An offer is a proposal that receives in exchange, a consideration.
A promise is a proposal that has no consideration.
- underdawg
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Re: What's the difference between promise and offer (in K)?
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.
a contract is reciprocal promises, i think, at least in a common sense way.
so "promise" doesn't necessarily mean it's gratuitous.
Last edited by underdawg on Sun Jan 28, 2018 11:35 pm, edited 1 time in total.
- bwv812
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Re: What's the difference between promise and offer (in K)?
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.mberg42 wrote:I hope your wrong because I wrote they were legally meaningless on an exam today...underdawg wrote:no, agreements to agree can have some value in courts, depends on the judge
- bwv812
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Re: What's the difference between promise and offer (in K)?
You're not confused?ok2bedifferent wrote:I'm not confused.... because wouldn't that mean that a gift is a promise?uvalaw4l wrote:Offer: I'll give you X if you give me Y.
Promise: I'll give you X for nothing.
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.
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Re: What's the difference between promise and offer (in K)?
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.bwv812 wrote: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.mberg42 wrote:I hope your wrong because I wrote they were legally meaningless on an exam today...underdawg wrote:no, agreements to agree can have some value in courts, depends on the judge
- uvalaw4l
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Re: What's the difference between promise and offer (in K)?
Promises alone aren't enforceable, but they are enforceable if they are used as consideration. When they are given alone, they are a gift.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?
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)
- underdawg
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Re: What's the difference between promise and offer (in K)?
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
Last edited by underdawg on Sun Jan 28, 2018 11:35 pm, edited 1 time in total.
- aguacaliente
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Re: What's the difference between promise and offer (in K)?
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.
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)?
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.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.
- underdawg
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Re: What's the difference between promise and offer (in K)?
in america, quantity is more important
Last edited by underdawg on Sun Jan 28, 2018 11:35 pm, edited 1 time in total.
- Pyke
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Re: What's the difference between promise and offer (in K)?
The idea is the same though, it's just a distinction over what is "critical" to the K.underdawg wrote:in america, quantity is more important
If the critical or key elements are not agreed upon, the courts will not find there to be a K.
- bwv812
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Re: What's the difference between promise and offer (in K)?
You mean: "In america, quantity is more important. There was this French case regarding Chinese paraffin..."underdawg wrote:in america, quantity is more important
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Re: What's the difference between promise and offer (in K)?
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.
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.
- sjk
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Re: What's the difference between promise and offer (in K)?
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.
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.
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Re: What's the difference between promise and offer (in K)?
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.
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.
- underdawg
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Re: What's the difference between promise and offer (in K)?
um
Last edited by underdawg on Sun Jan 28, 2018 11:35 pm, edited 1 time in total.
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