141 Of 174 documents

Corbin on Contracts

Copyright 2007, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

PART I FORMATION OF CONTRACTS

TOPIC A OFFER AND ACCEPTANCE

Supp. To CHAPTER 3 ACCEPTANCE AND REJECTION OF OFFER

1-3 Corbin on Contracts Supp. to § 3.33

Supp. to § 3.33 Attempts by the Offeree to State in the Acceptance the Legal Operation of the Agreement

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Supplement to Notes in Main Volume

2. Idaho- Suitts v. First Security Bank of Idaho, 125 Idaho 27, 867 P.2d 260 (App. 1993) (an acceptance of an offer to settle a lawsuit stating that the stipulation would constitute ''a full and final settlement'' of plaintiffs' claims was not a material variation of the offer but ''simply expressed the effect that would follow as a matter of law from'' the acceptance).

142 Of 174 documents

Corbin on Contracts

Copyright 2007, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

PART I FORMATION OF CONTRACTS

TOPIC A OFFER AND ACCEPTANCE

Supp. To CHAPTER 3 ACCEPTANCE AND REJECTION OF OFFER

1-3 Corbin on Contracts Supp. to § 3.34

Supp. to § 3.34 Mode of Acceptance Can Be Prescribed by the Offeror

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(A) The following case cites this section:

(1) Swanson v. Public Storage, Inc., 2001 U.S. Dist. LEXIS 6953 (D. Kan. May 18, 2001) . The plaintiff had a personal property storage lease with the defendant storage company's predecessor in interest. When the defendant purchased the facility, it sent the plaintiff two letters and new form leases, advising the plaintiff that his old lease was terminated and that he was required to enter into a new lease on the defendant's form. The plaintiff did not do so, and the defendant ultimately foreclosed a statutory lien and sold the plaintiff's property, based on the plaintiff's default under the defendant's form lease. The plaintiff filed suit alleging that the actions of the defendants violated a number of his statutory and common law rights. In determining the defendant's motion to dismiss or, alternatively, for summary judgment on several of the plaintiff's claims, the District Court for the District of Kansas held that the letter advising the plaintiff that his storage space lease had terminated and that he had to sign a new form lease had kept the old lease in effect on a holdover basis. The court dismissed the plaintiff's due process claim for sale of his property for lack of state action. The court held that the plaintiff was not bound by the Standard Storage Trust Lease because the accompanying letter had limited the manner of acceptance of the lease. Since the plaintiff did not accept the lease in the manner set forth by the offeror storage company, therefore no contract was created therein. In citing Corbin, the court reflected that ''The offeror creates the power of acceptance and has control over the character and extent of the power.'' 1 Corbin on Contracts § 3.34 (1993).

(2) Hunter v. Wilshire Credit Corp., 2005 Ala. LEXIS 180 . Where a seller initiated a counteroffer that required the seller's signature for acceptance and the seller did not sign, the court quoted Corbin's admonition that an unsigned contract cannot be enforced by either party if it was also agreed that it must be signed by both parties.

(3) Synnex Corporation v. ADT Security Services, Inc., 2007 N.J. Super. LEXIS 256 (2007) . In 2002, Synnex leased a large warehouse to use as a distribution center for computers and retained Synnex ADT to design and install a burglar alarm system for the warehouse The form ADT contract contained this clause: ''This Agreement is not binding unless approved in writing by an authorized Representative of ADT.'' The contract was signed by an authorized representative of Synnex and the ADT sales representative, but not by an ''authorized Representative of ADT.'' The parties subsequently executed two riders to the contract, which stated they were ''part of'' the original contract, which ''shall ... remain in full force and effect in accordance with all of the terms and conditions thereof, modified only as in this Rider specifically provided.'' Both of the riders were executed by a person designated as an ''authorized Representative of ADT.'' The form ADT contract contained a broad exculpatory clause requiring the buyer to rely solely on its own insurance for any loss from theft. After execution of the two riders, ADT installed the burglar alarm system. Later, the warehouse was burglarized and Synnex recovered $7.1 million in settlement for lost merchandise and equipment from its insurance company which brought this subrogation action in Synnex's name. Synnex obtained a judgment in the trial court based on the court's ruling that the absence of the signature of an ''authorized Representative of ADT'' on the contract precluded ADT from relying on the exculpatory clause in the main contract. On ADT's appeal, the court held that ADT's performance of the contract by delivery and installation of the burglar alarm system constituted its acceptance of the contract despite the absence of a signature by an authorized Representative of ADT. Quoting Corbin, the court explained that forms providing that the manufacturer will be bound only by the signed acceptance at the home office should be interpreted realistically and such maxims as 'the offeror is master of the offer' should be applied warily in this context. If the offeree authored the form and the clauses providing for the means of acceptance, it should have the power to waive such clauses, unless the offeror has relied on the terms of the offer. The court explained that the most unequivocal form of such waiver is full performance by the party who has reserved that right. Indeed, even part performance is a sufficient expression of an intent to be bound by the contract. Accordingly, ADT's performance of the contract by delivery and installation of the burglar alarm system constituted acceptance without home office approval, and therefore both parties were bound to the terms of the contract, including the exculpatory clause. This case is also noted at § 3.7 of the supplement.