i'd like to go back to the argument that i was trying to put forth today in class, as to why the widget seller should be allowed to rescind after he has started to perform. bear with me. it's an attack to the rule, so i have no claim as to contract law accuracy, feasibility... i am just paid by breaching widget sellers to try to persuade hls of their just cause. In random order:

1) the lack of mutuality argument/free ride on option contract argument agaist the rescission does not convince me, because we are talking of extending of a few days (time of delivery) a lack of mutuality that is inherent in the time window where the seller has to decide whether to accept the offer or not. and those days do not go to the significant detriment of the buyer.

2) if they do, as is the case for highly volatile goods, such as stocks, the law provides other means of security against wavering: e.g., the reasonable time for accepting the offer is substantially shorter for blue chip stocks than it is for canned beans.

3) the idea that the contract starts when performance starts, in this case via delivery, seems to me to be intended more toprotect the interest of the widget seller than of the buyer: it guarantees that the buyer cannot revoke the offer if the seller has already started the shipment. it is not meant to protect the buyer, who is (a) unaware of the intention/performance of the accepting act (b) not suffering in reliance on an offer that has not yet, to his knowledge, been accepted. if there is such reliance, other parts of the code take care of it. it is not the case here.

4) holding the mailbox rule to protect the offeror, rather than the offeree, gives too much incentive for perjury, which is kind of hip anyway but generally should be avoided. how hard is it for the offeror to prove that the offeree had started delivery if the former never gets a thing, nor does she get a promise of compliance?

5) interpreting the rule to the benefit of the offeror would open up a host of issues that i don't want to deal with (i've been up since 8:15 already): if "performance" has obtained when the goods left the seller's factory, why should he be responsible if the goods never reach the buyer through no fault of his own? or are we going to say that he is responsible for breach of contract if he stops the shipment of his own volition, but not if the goods never get there for some other reason?

6) and here we get to the "imperialist swines" part, this rule would offer more protection to big moma corporations that have satellite factories than it does to the small biscuit maker in maine: the former has the advantage of a few more days to "play the market" while he ships the goods to the sideshow factory/deposit before they actually "leave his possession" and thereby bring about performance. expanding on this, it would mean that the small baker would have to buy an option contract for the few extra days, and his costs would thus be higher if compared to those of the bigger corporation (because of the previous sentence) and he would be run out of the market, with awful consequences for consumer welfare. sort of.

If there is no reply to the above points, according to the "sound of silence" rule i will assume everyone agrees with my views and will write in our common name (including the endorsement of mr. lessig) to the restatement and UCC people for a new pro-widget rule.

widget sellers of the world, unite!

aa

-- Anonymous, November 24, 1998