1. How did the court determine that the offer was sufficiently definite?
The offer of the Wells Fargo Business Credit, Inc. was submitted to Nebraska Beef in the form of a letter. When Nebraska Beef engaged in accepting a line of credit from Wells Fargo they entered into a written credit agreement that outlined the terms of the line of credit and the over-advance which contained additional and progressive fees for each additional over-advance loan (the amount over the initial credit limit). With each of the three over-advance lines of credit or advances of money that Nebraska Beef took out with Wells Fargo, a formal written amendment to the original credit agreement was provided. Thus even though there were no new agreed upon terms, it is a sufficiently definite agreement in that Nebraska Beef evidenced their acknowledgement of additional fees through these three previous advances and further they acknowledge receipt of information stating these additional fees.
In fact it was stated in the case that “an offer may be inferred wholly or partly from words spoken or written or from the conduct of the parties or a combination thereof.” In this case clearly the conduct of Nebraska Beef indicates an acknowledgement of additional fees based on their previous advances and the associated fees. In the May advances, Wells Fargo simply charged the same additional fees as were in place in the third advancement and then at the end of the month (23rd) they sent a letter that Nebraska Beef acknowledges receiving; outlined the increase of the advancement fees. Nebraska beef continued to take advances throughout May and in this regard the offer was not only sufficiently definite but a unilateral contract existed (a promise for performance).
2.How did Nebraska Beef indicate its acceptance?
The Nebraska Beef ultimately engaged in an a agreed contract or ‘acceptance’ of the terms through their action of accessing or taking funds through the over-advance program and thus made Nebraska Beef subject to additional fees through the provisions of the additional amendments. Nebraska Beef accepts by using the money offered through the over-advance by Wells Fargo and continuing to take multiple options of the over the credit line-advances. This is ‘accepting’ the terms of the contract because they exercised their right to the funds and in doing so ‘accept’ the terms of the advance which include additional fees.
Chapter 14: Register.com, Inc. v. Verico, Inc.
Case Concept Review:
1.Why did the court conclude that Verio accepted the terms of the legend?
In this case the court ruled that Verio received daily notices of the conditions of the legend. This implies Verio accepted the terms of the legend at the very least after his initial use, because he continued to access and use the data after the fact of the notice. Although the initial use produced terms after he accessed the WHOIS data and was potentially unaware that the register had conditions for the use of the data until after he received it, Verio admits to being aware of the conditions after the first use and continued to access the data several times a day and repeatedly was sent the notice of the terms of the conditions thereafter. So, once these terms were evidenced after the initial transaction, every transaction thereafter would be subject to the conditions of the data and its use and Verio by continuing to access the data is subject to these conditions. By simply continuing to use and acquire the data, Verio is accepting the terms of the legend. The conditions were provided in writing and Verio continued to use this service therefore, his actions demonstrate acceptance of the terms.
2.In another section of the opinion, the court stated that there was no reason why Verio be required to “click” acceptance of the terms? Based on the material presented above, why do you believe that the court did not impose a “click” requirement?
It does seem as though a ‘click’ requirement would have kept the case out of court, however, as demonstrated in the material and the information provided above, the result would not have been different. Essentially, I believe the court did not impose a ‘click’ requirement because the term notifications are sent to the businesses making the data inquiries and after the data is received notifications for terms of the acceptable use of the data are provided in writing to the businesses. Therefore, by accessing and accepting the data, the actions of the business demonstrate an acceptance to the outlined conditions and therefore no ‘click’ is required. Using the data has certain provisions that are outlined in written notices and companies accepting the data are subject to complying with these provisions. There is an offer to provide the data with provisions for use and acceptance to receive the data and comply with their written acceptable use policy. ~No click necessary.
Chapter 15:Louisa W. Hamer v. Franklin Sidway, as Executor, etc.
Case Concept Review:
1. What did the nephew promise?
The nephew promised to keep from drinking and smoking, swearing, and playing cards or billiards for money until his twenty first birthday in exchange for a payment of $5000 from his uncle. The $5000 was to be paid to the nephew by the uncle after he turned twenty-one, if he refrained from all of the above actions during the time period prior to turning twenty-one. In this case the nephew kept his promise and his proper execution of the agreement was acknowledged by the uncle in a written correspondence.
2. Why was the nephew’s promise sufficient to qualify as consideration?
The nephew’s promise was sufficient to qualify as consideration because in order for there to be consideration, there has to be detriment. In this case, the court ruled that there was detriment to the nephew because he had to give up his right to freely engage in smoking and drinking and in promising to do that he is stating he is giving up this right and accepting the offer and in executing the acceptance he can’t smoke or drink which is something he had not been formally obligated to do (thus constituting a detriment). He had a right to drink, smoke, swear or play cards or billiards for money and he was served a detriment by giving up this right and entering into the agreement with his uncle to forgo these options.
The other element in consideration would be the legal benefit that is gained. This occurs when something is received that the party did not have a former legal right to receive. In this case the judge found that the uncle (who made the promise to pay) was benefited “in a legal sense.” The courts further stated that “it is enough that something is promised, done, forborne or suffered by the party to whom the promise is made as consideration for the promise made to him.” Additionally, the uncle wrote back acknowledging that the nephews promise was adequately executed per the terms of the agreement and per the nephew and uncle’s agreement, the nephew was entitled to the sum of money promised to him ($5000).There was acknowledged and agreed upon, full performance of the promise. The case was fairly straightforward once it was established that in fact consideration was met in the case.