One of my favorite lawyers – a dashing Italian fellow who could teach all three Heathers a thing about accessorizing – said I got something wrong in my book, Birth to Buyout: Law for the life Cycle of Your Business. Kindly and almost embarrassed, he pointed out how I described the moment that an offer gets accepted and turns into a contract. In my book I said that an offer has to be matched with a mirror of its terms or else it’s a counteroffer. He reminded me that the mirror standard under the UCC (sale of goods $500+) is dead but that my language was correct for common law (sales for services and goods less than $500). I am very grateful to him for pointing out the language and absolutely thrilled that he read it and engaged me about it.
The real problem is that we are both right. The UCC does let us make contracts between two sets of offers that don’t all match up. If there are proposals in both sets of offers that match, those go into an empty bucket called the “contract.” If there are two specific terms that are opposite, then those do not form a term in the contract, even though a contract can be formed. The rest of the “contract” bucket gets filled up with many things: the last presented terms, what the parties actually do and interpretations of the communications. I could have worded my language with more precision to make this clear.
This points to the reason why more lawyers don’t write books that try to explain the world of law to the rest of the world. And why writing it was such a challenge and why debating it is so delightful. Because law is complex and consequential and fascinating. Hard as you try to summarize and simplify, nuance gets lost in clarity. Lawyers love nuance and distrust clarity. So, lawyers are going to disagree with my language; some will go further and disagree with my conclusions. Regardless I just hope they share these thoughts with me so I can debate and improve the text I wrote to help people gather and grasp business law.
July 12, 2011
I enjoyed reading your post. Your book is on my list of books to read and I’m looking forward to engaging.
Few things in contract law are more challenging than navigating situations where the parties exchange form agreeements that aren’t signed–and generally aren’t read by the parties before a dispute arises.
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