as an it cannot be accepted so as to form a contract unless the terms of the contract are reasonably certain. (2) The terms of a contract are reasonably certain if they provide a basis for determining the existence of a breach and for giving an appropriate remedy. (3) The fact that one or more of a proposed bargain are left open or uncertain may show that a manifestation of intention is not intended to be understood as an offer or as an acceptance.” Restatement, Second, Contracts §34 Certainty and Choice of Terms; Effect of – Performance or Reliance The terms of a contract may be reasonably certain even though it “(1) empowers one or both parties to make a selection of terms in the course of performance. (2) Part performance under an agreement may remove uncertainty and establish that a contract enforceable as a bargain has been formed. (3) Action in reliance on an agreement may make a contractual remedy appropriate even though uncertainty is not removed.” Sale of Goods UCC §2-204 Formation in General – A contract for sale of goods may be made in any manner sufficient to “(1) show agreement, including conduct by both parties which recognizes the existence of such a contract. (2) An agreement sufficient to constitute a contract for sale may be found even though the moment of its making is undetermined. (3) Even though one or more terms are left open a contract for sale does not fail for indefiniteness if the parties have intended to make a contract and there is a reasonably certain basis for giving an appropriate remedy.” Special Cases Construction contracts - Both industry custom, as expressed in standard form subcontracts, and the circumstances surrounding the particular project, dictate the kinds of provisions the subcontractor should reasonably have expected in its final subcontract. (Crook v. Mortenson-Neal) Option Contract General Option Contract (Restatement (Second) Contracts §87) An offer is binding as an option contract if it “(1) (a) Is in writing and signed by the offeror, recites a purported consideration for the making of the offer, and proposes an exchange on fair terms within a reasonable time; or (b) Is made irrevocable by statute. (2) An offer which the offeror should reasonably expect to induce action or
as an it cannot be accepted so as to form a contract unless the terms of the contract are reasonably certain. (2) The terms of a contract are reasonably certain if they provide a basis for determining the existence of a breach and for giving an appropriate remedy. (3) The fact that one or more of a proposed bargain are left open or uncertain may show that a manifestation of intention is not intended to be understood as an offer or as an acceptance.” Restatement, Second, Contracts §34 – Certainty and Choice of Terms; Effect of Performance or Reliance “(1) The terms of a contract may be reasonably certain even though it empowers one or both parties to make a selection of terms in the course of performance. (2) Part performance under an agreement may remove uncertainty and establish that a contract enforceable as a bargain has been formed. (3) Action in reliance on an agreement may make a contractual remedy appropriate even though uncertainty is not removed.” Sale of Goods UCC §2-204 – Formation in General “(1) A contract for sale of goods may be made in any manner sufficient to show agreement, including conduct by both parties which recognizes the existence of such a contract. (2) An agreement sufficient to constitute a contract for sale may be found even though the moment of its making is undetermined. (3) Even though one or more terms are left open a contract for sale does not fail for indefiniteness if the parties have intended to make a contract and there is a reasonably certain basis for giving an appropriate remedy.” Special Cases Construction contracts - Both industry custom, as expressed in standard form subcontracts, and the circumstances surrounding the particular project, dictate the kinds of provisions the subcontractor should reasonably have expected in its final subcontract. (Crook v. Mortenson-Neal) Option Contract General Option Contract (Restatement (Second) Contracts §87) “(1) An offer is binding as an option contract if it (a) Is in writing and signed by the offeror, recites a purported consideration for the making of the offer, and proposes an exchange on fair terms within a reasonable time; or (b) Is made irrevocable by statute. (2) An offer which the offeror should reasonably expect to induce action or
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