Jeremy's Weblog

I recently graduated from Harvard Law School. This is my weblog. It tries to be funny. E-mail me if you like it. For an index of what's lurking in the archives, sorted by category, click here.

Saturday, October 12, 2002

This is the kind of learning you're missing if you're not in law school. I just sent an e-mail to my study group:

"I have a really specific question about today's class that I was going to try and articulate into an e-mail to Prof. Warren, but I'm kind of scared to do that, so I figured I'd see if any of you had the same thought as I did or could tell me where my logic is going wrong. Apologies if this makes no sense -- it made really good sense in my head during class but now it's not as clear to me, looking back at my notes. But anyway --

Regarding Nebraska Seed, when Prof. Warren was looking for reasons why we take the soft-edged approach of inferring the "invitation to deal" term instead of the hard-edged approach of requiring people to write in their advertisements that it wasn't an offer ---

If the default is "this is an offer," we run the risk of binding people into contracts they don't intend (like unsophisticated parties who don't know they need to include the invitation term), but if the default is "just an invitation," then the only risk we run is that two parties who both want to enter a contract, and are agreed on the terms, need to take that one extra step of invitation-offer-acceptance.

So the soft-edged rule doesn't really have any potential to cause any harm -- because if people want to make a contract, and agree on the terms, then another step won't stop them. But the hard-edged rule does have the potential to bind people who don't mean to be bound, so there is possible harm.

And that seemed to me like an argument in favor of the soft rule, but it wasn't one of Prof. Warren's in class.

(Just as an aside -- I'm realizing that under my logic here, transaction costs might be higher with the soft rule -- because of the extra step needed (invitation-offer-acceptance versus offer-acceptance), which is the opposite of the transaction costs issue Prof. Warren talked about in class -- higher with the hard rule because you need a lawyer ---- but aside from transactions costs, I'm wondering if my reasoning makes any sense)

Does this make any sense at all (or have I, as I suspect, done a really crappy job of articulating what the heck I'm talking about)?