(3) Did Sowle Breach When He Withheld the Payment Due to Pivot?

(1) Did Sowle and Vogue meet the requirements of offer and acceptance with regard to the delivery of the poles to Vogue?

Begin your analysis with the initial written agreement Vogue sent to Sowle, and analyze the sequence of communications to determine the relevance of each one to the issue of offer and acceptance. You may assume that, where relevant, all communications are seasonable.

Possibl Actual e Initial written agreement, Vogue to Sowle Is Vogue’s sending the agreement an offer? 2 Definition of an offer 2 Manifestation of a willingness to enter a bargain 2 Sowle justified in thinking his acceptance will conclude the 2 bargain? Signed 2 For your consideration and acceptance 3 Conclusion: an offer 2

Did Sowle accept? 2 Sale of goods, so 2-207(1) applies 2 Was Sowle’s sending the agreement an expression of 2 acceptance? No, 50% discount crossed out and 75% written in 2

Is Sowle’s sending the agreement an offer? 2 Definition of an offer 2 Manifestation of a willingness to enter a bargain 2 Vogue justified in thinking his acceptance will conclude the 2 bargain? Signed 2 Just initial the discount change and we have a deal 2 Conclusion: an offer 2

Did Vogue accept? 2 Sale of goods, so 2-207(1) applies 2 Was Vogue’s response an expression of 2 acceptance? Great! Our deal is on. 2 Different terms matter? No. 2 Conditional? No. 2 Vogue accepted. 2 2

(2) Does the agreement between Sowle and Vogue contain an arbitration clause? You may assume that Sowle and Vogue are merchants.

2-207(2) applies. 3 Between merchants, the terms of the agreement are the terms of 3 the acceptance unless one the exceptions applies. Offer expressly limit terms of the offer to the terms of the 2 acceptance? Only for other terms. Material alteration? Yes, an arbitration clause is. 2 Timely objection from Sowle? No. 2 The arbitration clause is not part of the agreement. 3

(3) Did Sowle breach when he withheld the payment due to Pivot?

Statement of the common law (or 2-609). 2 Did Sowle have reasonable insecurity about Pivot’s 3 performance? No. 3 The report. Pivot did not need to respond to the letter since 3 Sowle did not have reasonable insecurity. If Sowle did have reasonable insecurity, would it have been 2 reasonable for him to suspend performance? Probabaly. 2

(4) When was Pivot contractually obligated to begin the marketing campaign?

(a) Be sure to consider the effect of this conversation:

When they have their final face to face meeting to sign the agreement, Sowle says just before they sign, “I see the date for the beginning of the marketing campaign is specified as ‘on or about December 15, 2014’. I now know for certain that delivery of the poles to Vogue will be on December 8, so let’s agree that ‘on or about December 15, 2014’ means precisely on December 15.” Pivot says, “No problem at all. Agreed.”

You may assume that the exchange meets the requirements of offer, acceptance, and consideration. This raises a parol evidence rule issue. 3 Statement of the rule. 3 Contradiction? 2 Complete integration? 2 3

Statement of definition. 2 Evidence of intent. 2 “apart from the agreement they just made” 3 Entire agreement clause 3 On balance, insufficient evidence of intent 2 If complete integration, in the scope? 2 Normal inclusion test. 2 Normally included? Yes 2 Rebuttable? Same considerations relevant as above. 2

(b) Consider whether this conversation creates a side agreement the enforceability of which would be a parol evidence issue:

Sowle explains that is extremely important to coordinate the marketing campaign with the delivery of the poles to the high schools. He wants the marketing campaign to begin one week after the poles are delivered to Vogue. Pivot assures him that such coordination will be no problem. Pivot says, “Let’s figure all that out in the written agreement.” Sowle says, “A good plan. Let’s do that.”

Was there an offer? 2 Definition. 2 What was the bargain manifested? 2 No bargain was defined. Fails definiteness and completeness. 3 At most an agreement to agree. 3 Would the agreement to agree be enforceable under the PE rule? 2 Statement of the rule. 2 Contradiction? 2 Complete integration? 2 Conversation, entire agreement clause 2 In the scope? 2 Normal inclusion test. 2

(c) No matter how you resolve the side agreement/parol evidence rule issue, identify one more doctrine that Sowle might use to argue that “on or about December 15” should be interpreted to mean “on December 22.” Evaluate that argument.

Interpretation doctrine 5 Sowle would have to argue that there was an ambiguity in “on or 5 about December 15” that the objective intent test cannot resolve unless one brings in the discussion about coordinating the timing with the delivery of the poles. With the discussion considered, Sowle could argue that a 5 4 reasonable person would interpret “on or about December 15” to mean December 22.

(5) Does Sowle owe expectation damages to Vogue. If so, explain how much he owes and why.

Is Sowle excused by impracticability doctrine? 2 Statement of the doctrine. 2 Impracticable? Yes, impossible. 2 Sowle ought not to bear the risk of loss? 3 Who is best cost avoider? 3 Sowle is. 3

Expectation damages three step calculation. 3 Mitigation? 3 Foreseeability? 4 Proof? 3 Conclusion. 2