Drafting a Law Office Memorandum
TO: Gaby Duane FROM: Clark Thomas RE: Loman 's Fashions - Breach of contract claim ( advertising handbill ) Date: April 26, 2002 QUESTION PRESENTED 1 Under New York law, 2 did 3 Loman 's Fashions ' description of a interior decorator leather coat in an advertisement round constitute an offer 4 to sell the coat which became a binding contract when the text of the advertizement indicated that the coats were a `` maker 's closeout '' and that the early shopper would be rewarded, and when a shopper signified her purpose to buy the coat harmonizing to the advertised footings? 5 SHORT ANSWER 6 No. 7 Where, as here, the text of the advertizement simply stated that the sale was a `` maker 's closeout '' and that the `` early '' shopper would `` catch the savings, '' the advertizement was non an offer to sell the coat which could be converted into a binding contract by behavior meaning an credence of the advertised footings. FACTS 8 Loman 's Fashions, a retail merchant of adult females 's and men 's overclothes, distributed a handbill in November publicizing a maker 's closeout of interior decorator adult females 's leather coats for $ 59.99, coats that on a regular basis sold for $ 300.00. The ad announced that the store would open at 7 a.m. on Friday, November 30, and stated that the `` early bird catches the savings! '' After about 15 proceedingss, all the advertised coats had been sold. At 7:30 ante meridiem, a shopper inquired about the coats and was told that there were none left, but she complained that Loman 's was obligated to sell her a comparably valued interior decorator leather coat at the advertised monetary value. The shop manager declined, and the shopper filed a complaint in Small Claims Court, 9 alleging that Loman 's had breached a contract by neglecting to sell the advertised leather coats at the advertised monetary value. 10 Loman 's president, Willi Loman, stated that the shop on occasion gives rain cheques when it is possible to refill supplies of an point that Loman 's can buy at a price reduction. In this instance, the maker had discontinued the line of coats and Loman 's was non prepared to sell other, designer leather coats at such a drastic markdown. Loman expressed concern 11 that, if the shopper 's reading were to keep, Loman 's would hold to reconsider its selling schemes ; she had assumed that the advertised footings applied while supplies lasted. She asks whether Loman 's would hold any contractual obligation under these fortunes. 12 DISCUSSION 13 Loman 's Fashions has been sued by a shopper for a breach of contract for its failure to sell a interior decorator leather coat that had been advertised for sale at a well marked-down monetary value. Loman 's contends that the advertizement was intended to use while supplies of the point lasted, and that is it non obligated to sell the shopper a comparably valued coat at the advertised monetary value. The issue in this instance is whether a retail merchant 's advertizement will be considered to be an offer that may be turned into a binding contract by a shopper who signifies an purpose to buy the points described in the advertizement. A court would probably reason that the shopper did non province a cause of action for breach of contract because the advertizement did non represent an offer which, upon credence, could be turned into a contract but instead and invitation to negociate. 14 In New York, the regulation is good settled that an advertizement is simply an invitation to come in into dialogues, and is non an offer that may be turned into a contract by a individual who communicates an purpose to buy the advertised point. Geismar v. Abraham & Strauss, 439 N.Y.S.2d 1005 ( Dist. Ct. Suffolk Co. 1981 ) ; Lovett v. Frederick Loeser & Co. , 207 N.Y.S.753 ( Manhattan Mun. Ct. 1924 ) ; Schenectady Stove Co. v. Holbrook, 101 N.Y. 45 ( 1885 ) ; People v. Gimbel Bros. , Inc. , 115 N.Y.S.2d 857 ( Manhattan Ct. Spec. Sess. 1952 ) . The lone general trial is the enquiry whether the facts show that some public presentation was promised in positive footings in return for something requested. Lovett, 207 N.Y.S.2d at 755. However, a buyer may non do a valid contract by mere credence of a `` proposition. '' Schenectady Stove Co. , 101 N.Y. at 48. Nor does the buyer have the right to choose an point which the marketer does non hold in stock or is non willing to sell at a decreased monetary value. Lovett, 207 N.Y.S. at 757. 15 16 An offer to contract must be complete and definite in its stuff footings ; a general advertizement that simply lists points for sale is at best an invitation to negociate unless it promises to sell an point in return for something requested. In Schenectady Stove Co. , for illustration, the plaintiff delivered to defendant a catalogue of monetary values containing a statement of footings of sale, but the catalogue did non province the sum of goods which complainant was willing to sell on those footings. Under these fortunes, the Court of Appeals held that no contract was of all time made between the parties with respect to an order that suspect submitted because the complainant had non made an offer that was complete and definite in all stuff footings. Hence, it was non possible for the suspect to do a valid contract by mere credence of a `` proposition. '' 101 N.Y. at 48. Similarly, in Lovett, a section shop advertised that it would sell, present, and install certain `` wellknown criterion makes of radio receivers at 25 per cent. to 50 per cent. reduction '' from advertised list monetary values. The complainant had demanded a peculiar theoretical account of wireless that was non listed in the ad, and the suspect had declined to sell it at the decreased monetary value. 207 N.Y.S. at 754. The court held that an advertizement by a section shop was non an offer but an invitation to all individuals that the advertiser was ready to receive offers for the goods upon the declared footings, concluding that such a general advertizement was distinguishable from an offer of a reward or other payment in return for some requested public presentation. Id. at 755-56. The court farther held that, even presuming the complainant 's `` credence '' turned the offer into a contract, the buyer did non hold the right to choose the point which the suspect did non hold in stock or was non willing to sell at a decreased monetary value. Id. at 756-57. 17 Loman 's advertizement did non contain a promise to sell the leather coats in exchange for some requested act or promise. By its footings, the advertizement announced that it had a stock of coats to sell, and described the coats as a maker 's closeout merchandising at a well reduced monetary value. 18 Nor did the ad give the populace an option to take any comparably priced leather coat if the advertised coats were no longer available. As the court noted in Lovett, 19 a prospective buyer does non hold the right to choose points that the retail merchant does non hold in stock or is non willing to sell at a decreased monetary value. Lovett, 207 N.Y.S. at 757. 20 The claimant here might argue that the advertizement did non contain limiting linguistic communication, for illustration, that the coats were for sale while supplies lasted 21. However, the ad indicated that the shop, opening for concern on the twenty-four hours of the sale at 7 a.m. , was providing to early morning shoppers. By denoting that `` the early bird catches the nest eggs, '' the ad could reasonably be read to intend that the supplies were non limitless. 22 CONCLUSION 23 On these facts, the tribunal will likely 24 discoveries that the claimant has failed to province a cause of action for breach of contract because the ad did non represent an offer but simply an invitation to negociate.
4 ) The writer of this memo has been careful non to utilize linguistic communication that assumes the answer to the legal inquiry it raises. Here, since the inquiry presented is designed to foreground whether the facts indicate that a formal contract offer has been made, you would non utilize the term `` offer '' in framing the inquiry, i.e. , you would non compose `` Did an advertisement round depicting ware constitute an offer when it offered the ware for sale starting at a designated day of the month and clip? '' because that preparation of the inquiry assumes a legal decision -- that the behavior at issue meets the demands of an offer. Rather, reserve your legal decisions ( here, whether or non the advertizement constituted a formal offer ) for the short reply subdivision.
5 ) Here, observe how the author has constructed the inquiry in this memo to alarm the reader to the undermentioned facts: description of ware in an advertisement handbill, statement in round that point is a `` manufacturer’s closeout, '' statement in round indicating that the early shopper will be rewarded. Although the `` inquiry presented '' subdivision is short, it must ( i ) supply a concise mention to the legal claim and relevant philosophy and ( two ) incorporate the most lawfully important facts of your instance. A complete and well-balanced inquiry presented is acute — it instantly gets to the heart of the legal inquiry — and it orients the reader to the factual context. You may non be certain which facts are most lawfully important when you foremost get down writing the memo. Your thought may go clearer and better organized as the writing returns. You would determine which facts are lawfully important by mentioning to the factual standard ( based on elements or factors ) in the legal authority relevant to the inquiry — e.g. , statutes or instance law. For this ground, many people do non compose the concluding version of the inquiry presented ( or the short reply ) until they have about completed the `` treatment '' subdivision of the memo.
6 ) The short reply contains a clear reply to the inquiry ( i.e. , a anticipation ) and an account of that reply. The balanced description of jurisprudence and fact that you provide in the inquiry presented should be mirrored in the short reply. The short reply serves two maps: ( i ) it provides hurried readers with an accessible, bottom-line anticipation every bit good as the nucleus of the relevant jurisprudence and facts ; and ( two ) it provides the more thorough readers with an lineation or digest of your subsequent treatment subdivision. The short reply should work as a roadmap to help readers experience oriented when they move on to the treatment.
8 ) The facts subdivision contains all the factual premises upon which your subsequent legal analysis is based. Certainly, all the facts cited in the application subdivision ( The `` A '' in IRAC or CRRACC ) of your treatment should be presented as portion of the story told in the facts subdivision. Bear in head that the busy law-trained reader will value conciseness in this subdivision, so seek to show merely those facts that are lawfully important or that are necessary to do the job clear. At the same clip, bear in head that the office memo should be a stand-alone papers that can to the full inform any co-worker in your jurisprudence office who may read it ; hence, the facts subdivision should ever incorporate a full and consistent recitation of the relevant facts, whether or non the chief reader of the memo already knows them ( unless, of class, you were instructed to make otherwise ) .
9 ) It is helpful to the reader to show the facts harmonizing to some organisational strategy. In this memo, the author has addressed the bosom of the incident — the advertizement, the sale of the coats, the reaching of the unhappy shopper — in chronological order in the first paragraph ; a 2nd paragraph collects relevant background information about the client. In your ain memo, you can tell the facts wholly chronologically, you can put the most of import incidents or facts foremost, or you can constellate the facts into distinct subjects if the facts are complex and if this is the easiest manner to understand them. Choose the organisational strategy that you think will do the facts most clear and memorable to the reader.
12 ) Since memo writing is prognostic writing, you should seek to maintain an nonsubjective and impartial tone as you recount the facts. This is non to say that you should omit facts that have an emotional impact. Rather, the facts subdivision of an office memo should non be written in a tone that conveys a penchant for a peculiar theory of the instance, that implicitly advocates for one side in the difference, or that telegraphs any of the legal decisions to be drawn in the treatment subdivision. Since you are non recommending for any side, you ought non colourise or qualify the facts as you would if you were writing a brief. Besides, do non notice upon the facts in the facts subdivision or discourse how the jurisprudence will use to them.
23 ) The overall decision contains a sum-up of the chief points of your analysis. In your application subdivision you may hold struggled with countries of uncertainness in the legal philosophy and/or viing policy principles. You may hold besides grappled with a apparently contradictory mixture of facts: some seem to suit into the demands of the regulation ; others suggest that the regulation is non satisfied. You may hold weighed statements against counterarguments. After you have done all this, you must take a place and do a statement about how the tribunal will use the jurisprudence. Given the more to the full fleshed out short reply, the author here has opted for a brief restatement of the ultimate decision.
A memorandum can hold merely a certain figure of formats ; it may hold a format particular to an office or establishment. In jurisprudence specifically, a memorandum is a record of the footings of a dealing or contract, such as a policy memo, memorandum of apprehension, memorandum of understanding, or memorandum of association. Alternate formats include memos, briefing notes, studies, letters or binders. They could be one page long or many. They may be considered as gray literature. If the user is a cabinet curate or a senior executive, the format might be stiffly defined and limited to one or two pages. If the user is a co-worker, the format is normally much more flexible. At its most basic degree, a memorandum can be a handwritten note to one 's supervisor. In concern, a memo is typically used by houses for internal communicating, as opposed to letters which are typically for external communicating. Hence, we can see memorandum as an upward communicating procedure through which any ailment, issues, sentiment, positions and suggestion are put frontward to the authorized degree.
As the communicating mechanism of the policy analysis procedure, the briefing note should supply a consistent outline of a policy job, place different policy options for turn toing the job, articulate opposing positions and recommend a recommended option. The typical construction for a briefing note includes: a description of the proposed policy ; relevant background information ; a treatment of cardinal considerations ( including execution concerns, fiscal considerations, stakeholder impacts, and possible unforeseen effects ) , a sum-up of statements for and against the policy and a recommended determination. Policy paperss that start with a proposal and piece an statement that place are more accurately referred to as a authorities white paper. A authorities green paper which raises a policy option and is meant to open a duologue on the proposal is more similar in tone to a briefing note than is a white paper.
There is no cosmopolitan criterion for a briefing note, but it is by and large understood to be a concise, consistent sum-up of a public policy job with a clearly articulated logic for following a recommended class of action. ”Next to a political olfactory organ, and a logical encephalon, the most of import accomplishment of the good exchequer resides in all right drafting manus. The concise, coherent and perforating note is the concluding look of all other talents.” In many Westminster / Whitehall administration scenes, policy analysts are expected to analyse the issue and compose the briefing note from a impersonal public service position. However, the briefing note “for decision” must incorporate a recommendation, admiting that “to say anything of importance in public policy requires value judgements, which must be explained and justified” .
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