TO: Gaby Duane
FROM: Clark Thomas
RE: Loman's Fashions - Breach of contract claim (advertising circular)
DATE: April 26, 2002
Under New York law,2 did 3 Loman's Fashions' description of a designer leather coat in an advertising circular constitute an offer4 to sell the coat which became a binding contract when the text of the advertisement indicated that the coats were a "manufacturer's closeout" and that the early shopper would be rewarded, and when a shopper signified her intent to purchase the coat according to the advertised terms?5
No.7 Where, as here, the text of the advertisement merely stated that the sale was a "manufacturer's closeout" and that the "early" shopper would "catch the savings," the advertisement was not an offer to sell the coat which could be converted into a binding contract by conduct signifying an acceptance of the advertised terms.
Loman's Fashions, a retailer of women's and men's outerwear, distributed a circular in November advertising a manufacturer's closeout of designer women's leather coats for $59.99, coats that regularly 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 fifteen minutes, all the advertised coats had been sold. At 7:30 a.m., 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 designer leather coat at the advertised price. The store manager declined, and the shopper filed a complaint in Small Claims Court,9 alleging that Loman's had breached a contract by failing to sell the advertised leather coats at the advertised price.10
Loman's president, Willi Loman, stated that the store occasionally gives rain checks when it is possible to replenish supplies of an item that Loman's can purchase at a discount. In this case, the manufacturer had discontinued the line of coats and Loman's was not prepared to sell other, designer leather coats at such a drastic markdown. Loman expressed concern11 that, if the shopper's interpretation were to hold, Loman's would have to reconsider its marketing strategies; she had assumed that the advertised terms applied while supplies lasted. She asks whether Loman's would have any contractual obligation under these circumstances.12
13Loman's Fashions has been sued by a shopper for a breach of contract for its failure to sell a designer leather coat that had been advertised for sale at a substantially marked-down price. Loman's contends that the advertisement was intended to apply while supplies of the item lasted, and that is it not obligated to sell the shopper a comparably valued coat at the advertised price. The issue in this case is whether a retailer's advertisement will be considered to be an offer that may be turned into a binding contract by a shopper who signifies an intention to purchase the items described in the advertisement. A court would likely conclude that the shopper did not state a cause of action for breach of contract because the advertisement did not constitute an offer which, upon acceptance, could be turned into a contract but rather and invitation to negotiate.
14In New York, the rule is well settled that an advertisement is merely an invitation to enter into negotiations, and is not an offer that may be turned into a contract by a person who communicates an intention to purchase the advertised item. 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 only general test is the inquiry whether the facts show that some performance was promised in positive terms in return for something requested. Lovett, 207 N.Y.S.2d at 755. However, a purchaser may not make a valid contract by mere acceptance of a "proposition." Schenectady Stove Co., 101 N.Y. at 48. Nor does the purchaser have the right to select an item which the seller does not have in stock or is not willing to sell at a reduced price. Lovett, 207 N.Y.S. at 757.15
16An offer to contract must be complete and definite in its material terms; a general advertisement that merely lists items for sale is at best an invitation to negotiate unless it promises to sell an item in return for something requested. In Schenectady Stove Co., for example, the plaintiff delivered to defendant a catalogue of prices containing a statement of terms of sale, but the catalogue did not state the amount of goods which plaintiff was willing to sell on those terms. Under these circumstances, the Court of Appeals held that no contract was ever made between the parties with respect to an order that defendant submitted because the plaintiff had not made an offer that was complete and definite in all material terms. Hence, it was not possible for the defendant to make a valid contract by mere acceptance of a "proposition." 101 N.Y. at 48. Similarly, in Lovett, a department store advertised that it would sell, deliver, and install certain "wellknown standard makes of radio receivers at 25 per cent. to 50 per cent. reduction" from advertised list prices. The plaintiff had demanded a particular model of radio that was not listed in the ad, and the defendant had declined to sell it at the reduced price. 207 N.Y.S. at 754. The court held that an advertisement by a department store was not an offer but an invitation to all persons that the advertiser was ready to receive offers for the goods upon the stated terms, reasoning that such a general advertisement was distinguishable from an offer of a reward or other payment in return for some requested performance. Id. at 755-56. The court further held that, even assuming the plaintiff's "acceptance" turned the offer into a contract, the purchaser did not have the right to select the item which the defendant did not have in stock or was not willing to sell at a reduced price. Id. at 756-57.
17Loman's advertisement did not contain a promise to sell the leather coats in exchange for some requested act or promise. By its terms, the advertisement announced that it had a stock of coats to sell, and described the coats as a manufacturer's closeout selling at a substantially reduced price. 18 Nor did the ad give the public an option to choose any comparably priced leather coat if the advertised coats were no longer available. As the court noted in Lovett,19 a prospective purchaser does not have the right to select items that the retailer does not have in stock or is not willing to sell at a reduced price. Lovett, 207 N.Y.S. at 757.
20The claimant here might argue that the advertisement did not contain limiting language, for example, that the coats were for sale while supplies lasted21. However, the ad indicated that the store, opening for business on the day of the sale at 7 a.m., was catering to early morning shoppers. By announcing that "the early bird catches the savings," the ad could fairly be read to mean that the supplies were not unlimited.22
On these facts, the court will probably24 find that the claimant has failed to state a cause of action for breach of contract because the ad did not constitute an offer but merely an invitation to negotiate.
1) The question presented states the question(s) the memo is to address: how does the relevant law apply to the key facts of the research problem? The question should be sufficiently narrow and should be objective.
2) Generally, include the name of the jurisdiction involved, e.g., New York, the Second Circuit, etc.
3) The Question Presented is usually one sentence. It often begins: "Whether...." or "Does...." Here, the writer has chosen "did." Although questions are usually framed so that they can be answered yes or no (or probably yes or probably no), sometimes they cannot (such as "Under New York law, has a retailer made a binding offer when...?").
4) The author of this memo has been careful not to use language that assumes the answer to the legal question it raises. Here, since the question presented is designed to highlight whether the facts indicate that a formal contract offer has been made, you would not use the term "offer" in framing the question, i.e., you would not write "Did an advertising circular describing merchandise constitute an offer when it offered the merchandise for sale starting at a designated date and time?" because that formulation of the question assumes a legal conclusion -- that the conduct at issue meets the requirements of an offer. Rather, reserve your legal conclusions (here, whether or not the advertisement constituted a formal offer) for the short answer section.
5) Here, note how the writer has constructed the question in this memo to alert the reader to the following facts: description of merchandise in an advertising circular, statement in circular that item is a "manufacturer’s closeout," statement in circular indicating that the early shopper will be rewarded.
Although the "question presented" section is short, it must (i) provide a concise reference to the legal claim and relevant doctrine and (ii) incorporate the most legally significant facts of your case. A complete and well-balanced question presented is incisive — it immediately gets to the heart of the legal question — and it orients the reader to the factual context.
You may not be sure which facts are most legally significant when you first start writing the memo. Your thinking may become clearer and better organized as the writing proceeds. You would ascertain which facts are legally significant by referring to the factual criteria (based on elements or factors) in the legal authority relevant to the question — e.g., statutes or case law. For this reason, many people do not write the final version of the question presented (or the short answer) until they have almost completed the "discussion" section of the memo.
6) The short answer contains a clear answer to the question (i.e., a prediction) and an explanation of that answer. The balanced description of law and fact that you provide in the question presented should be mirrored in the short answer.
The short answer serves two functions: (i) it provides hurried readers with an accessible, bottom-line prediction as well as the core of the relevant law and facts; and (ii) it provides the more thorough readers with an outline or digest of your subsequent discussion section. The short answer should function as a roadmap to help readers feel oriented when they move on to the discussion.
7) Begin the short answer with your conclusion: yes, no, probably yes, etc., if the question can be answered that way. Then give a brief (usually no more than four or five sentences long) self-contained explanation of the reasons for your conclusion, applying the rule to the facts of your case. As a general rule, include no citations.
8) The facts section contains all the factual premises upon which your subsequent legal analysis is based. Certainly, all the facts cited in the application section (The "A" in IRAC or CRRACC) of your discussion should be presented as part of the story told in the facts section.
Bear in mind that the busy law-trained reader will value conciseness in this section, so try to present only those facts that are legally significant or that are necessary to make the problem clear. At the same time, bear in mind that the office memo should be a stand-alone document that can fully inform any colleague in your law office who may read it; therefore, the facts section should always contain a full and coherent recitation of the relevant facts, whether or not the principal reader of the memo already knows them (unless, of course, you were instructed to do otherwise).
9) It is helpful to the reader to present the facts according to some organizational scheme. In this memo, the writer has addressed the heart of the incident — the advertisement, the sale of the coats, the arrival of the unhappy shopper — in chronological order in the first paragraph; a second paragraph collects relevant background information about the client.
In your own memo, you can recount the facts completely chronologically, you can put the most important incidents or facts first, or you can cluster the facts into discrete topics if the facts are complex and if this is the easiest way to understand them. Choose the organizational scheme that you think will make the facts most clear and memorable to the reader.
10) In your fact section, be sure to specify what legal claims are being considered or are being brought, and be sure to describe any legal proceedings that have already taken place.
11) Identify your client and briefly describe your client’s goal or problem.
12) Since memo writing is predictive writing, you should try to maintain an objective and impartial tone as you recount the facts. This is not to say that you should omit facts that have an emotional impact. Rather, the facts section of an office memo should not be written in a tone that conveys a preference for a particular theory of the case, that implicitly advocates for one side in the dispute, or that telegraphs any of the legal conclusions to be drawn in the discussion section. Since you are not advocating for any side, you ought not color or characterize the facts as you would if you were writing a brief. Also, do not comment upon the facts in the facts section or discuss how the law will apply to them.
13) The umbrella section of the discussion introduces or prefaces your first section of in-depth legal analysis; for example, it restates the key facts and issue presented, and introduces the overarching legal rule. Note how the writer alerts the reader to the key point of the doctrine, that general advertisements are treated in law as invitations to negotiate, not offers.
14) The rule statement synthesizes key elements of the cases relevant to the issue in your case into a general statement of the rule. To produce an accurate and well-crafted rule statement, you must have a good understanding of the existing legal authority on which your rule statement is based.
15) Note how the writer pulls together key cases that comprise the rule, then identifies the standard of inquiry by which courts apply the rule.
16) If the rule statement serves as the thesis sentence for a longer discussion about a legal rule that has developed over time in a series of cases, the rule proof serves as your explanation and elaboration of that thesis sentence.
Note as you read this section how the writer fleshes out the facts, holding, and reasoning of the Schenectady Stove Co. and Lovett cases, focusing on facts that are similar to the Loman case.
17) A good application section weaves the cases into your facts. Language from the cases should be prominent and woven into your discussion of these facts. In the rule proof you discuss cases to support the rule statement. In the application section, you might draw analogies or contrasts between the cases discussed in the rule proof and your facts as a way to reach your conclusion.
18) Note how the writer focuses on the specifics of the language of the advertisement.
19) Note how the writer draws a direct comparison to similar facts in the Lovett case.
20) The use of a counterargument is a good way to convey that the existing legal authority is not clear, unequivocal, or unified when applied to facts like yours. It may be the case that you cannot predict with certainty the outcome of your case, given your facts.
21) Note here how the writer points to the absence of limiting language in the advertisement to support an argument that a shopper would be led to believe that appearing at the appointed time was sufficient to qualify for the reduced-price item.
22) In a longer, more complex discussion, include here a short statement of your position on the question or issue explored in a given IRAC (or CRRACC) unit -- your conclusion for that unit.
23) The overall conclusion contains a summary of the main points of your analysis. In your application section you may have struggled with areas of uncertainty in the legal doctrine and/or competing policy rationales. You may have also grappled with a seemingly contradictory assortment of facts: some seem to fit into the requirements of the rule; others suggest that the rule is not satisfied. You may have weighed arguments against counterarguments. After you have done all this, you must take a position and make a statement about how the court will apply the law. Given the more fully fleshed out short answer, the writer here has opted for a brief restatement of the ultimate conclusion.
24) As a legal writer, it helps to have an assortment of qualifiers to acknowledge how certain or uncertain you are of the actual judicial outcome. Your conclusion can convey that you are completely confident the court will rule as you predict or that, given the state of the legal authority, the outcome is really a toss-up and could go either way. Or you can convey any level of confidence in between. Keep in mind that the reader will be judging your credibility as a legal thinker based on (among other things) the congruity of your tone with the data at hand.
Preparing a legal memorandum
A legal memorandum presents research and analysis and applies the research and analysis to particular facts. A legal memorandum follows a general structure and follows certain conventions. The structure and conventions are discussed below, and a sample memorandum is included.
Because each legal problem is distinct, no two memoranda will be organised in precisely the same way. Do not slavishly follow the sample memorandum, and do feel free to incorporate your own style where appropriate. The goal of this page is to help you learn about the general structure and components of this form of writing, and apply them to your research assignment in the most effective way for your particular problem.
A legal memorandum is comprised of certain standard elements:
- succinct identification of the legal issue(s)
- short summary of your conclusion
- review of relevant facts
- discussion of the law relevant to the legal issues, and application of that law to the facts
- ultimate conclusion that is responsive to the legal issues.
Each of these elements is discussed in greater detail below.
The heading should identify the author and recipient of the memorandum, and include the date, client identification, and subject matter. See the Sample Memorandum for an example of a typical heading.
The Issues portion of the memorandum is crucial. You must succinctly identify the correct legal issues, within the context of the facts of your case. Include legal elements that are essential to resolution of the issues.
The more narrow and descriptive your issue statement is, the more effective it will be. Compare these three issue statements, derived from the sample memorandum research problem:
|#1||Is the security enforceable?|
|#2||Will security documents signed and registered using the debtor’s common law name be enforceable against the debtor and the debtor’s creditors if the debtor later changes to using his legal name?|
|#3||Will personal property security documents granted in favour of the Bank, signed and registered in British Columbia using the Debtor’s common law name David Black, be enforceable against the Debtor and the Debtor’s creditors now that the Debtor has changed to using his legal name David Brown?|
- #1 asks the basic question that needs to be answered. However, when compared to #2 and #3, it is clearly inadequate. It provides no context for anyone who is not immediately familiar with the case, and does not add value to the memorandum as a precedent for future cases.
- #2 is a good issue statement. It provides a concise summary of the legal issue, and includes the essential elements. It is less wordy than #3, making it easier to read and understand. However, it is less complete than #3, because it does not incorporate the specific facts of the case.
- #3 is an excellent issue statement. It sets out the precise legal issue to be resolved. Just as each legal case is decided within the confines of the facts of that case, a legal memorandum is intended to address the narrow legal issue raised by a particular problem.
If there is more than one issue to be addressed, list the issues in the order in which you will be discussing them in the memorandum.
See the Sample Memorandum for an example of the Issues portion of a legal memorandum.
Here, you can provide a brief, up-front statement of your conclusion(s).
Remember that your reader does not want to be kept in suspense. A crisp, clear, responsive answer must be provided as near the beginning of your memorandum as possible. See the Sample Memorandum for an example of the Short Conclusion portion of a legal memorandum.
The Facts portion should list the relevant facts on which you have relied in researching and preparing the memorandum. If you have made assumptions, indicate this. If you have relied on any documentation (e.g. from the client), indicate that too.
State the facts objectively and clearly. Usually, the order is chronological. Use definitions to standardize terminology for persons and things that will be referred to frequently in the memorandum. This prevents clutter and inconsistent references to the same thing.
If your matter relates to litigation, make sure to review the key parts of the procedural history, and note the current stage of proceedings.
The Facts portion can either precede or follow the Issues section of the memorandum. Various formats are listed below. If the Issues will not make sense without reference to the Facts, then put the Facts first. Alternatively, if the Facts portion of the memorandum is quite lengthy, your reader may want to see the Issues first. (You may have cited some facts already, in your Short Conclusion section.)
See the Sample Memorandum for an example of the Facts portion of a legal memorandum.
There are various ways of dealing with conclusions in a legal memorandum:
|Format 1||Format 2||Format 3||Format 4|
If you follow the model of including your Short Conclusion early in the memorandum, keep that section extremely brief (three-four sentences, maximum). You can then provide a more detailed Conclusion at the end. If your Short Conclusion and your Conclusion are likely to be identical, use Format 1.
Equivocation / opinion
One of the hardest parts of writing a legal memorandum is to reach a defensible conclusion when the law is uncertain generally, or as it applies to your facts. Since the purpose of the memorandum is to answer the legal question posed, you cannot simply say that the law is unclear and leave it at that. You have to trust that your research and analytical skills enable you to provide a reasonable answer.
In some circumstances there may be a practical solution that enables you to avoid confronting the uncertainty in the law. The sample memorandum provides an example of this. However, usually you have to make a decision about what a court would likely do if faced with your fact situation.
Don’t hesitate to offer your own opinions, as long as they are well-grounded in the law and facts.
Try to avoid using equivocal language in your memorandum where possible. This is particularly important in the Conclusion section. Sentences that begin with the phrase “It would appear that” or “It seems that” should alert you to equivocation.
By all means indicate where the law is unclear, and absolutely state the risks of the client’s position. But also state what you think is the better view or probable outcome, and the client’s chances of success if applicable.
Analysis and discussion
The Discussion section is the heart of the memorandum. It provides the venue for explaining and analysing the law, and applying it to your facts (let the word “synthesis” guide your approach to this section). The Discussion section should be broken down into a separate part for each discrete legal issue covered in the memorandum; subheadings are helpful here. The discussion of each issue should include an introduction, an explanation of the applicable legal rule, an application of the rule to the legal problem, and a conclusion in respect of that issue. The classic formulation for this is known as IRAC.
|I||The first step is to state the legal issue. This can be done in a couple of ways. You can summarize the issue in the form of a topic sentence or question. The most effective style is to use a thesis sentence or paragraph that not only indicates what the issue is, but tells the reader briefly what your conclusion is on the issue. The issue can also be referred to in the heading for this part of the Discussion section.|
|R||The second step is to determine the applicable legal rule. This involves a review and analysis of the relevant cases, statutes, and secondary sources. It is sometimes referred to as rule explanation. Depending on the nature of the legal rule, you may need to review the history of the rule and consider the policy rationale for the rule. You may find there are different lines of cases, each resulting in a different formulation of the rule. Try to approach this section using rules synthesized from the cases, rather than simply listing a series of individual cases. Avoid lengthy quotations from cases. This section includes analysis of the rule, but does not include application of the rule to your facts.|
|A||The third step is to apply the legal rule to your facts. This involves further analysis and weighing of individual cases, distinguishing cases, making counter-arguments, and considering policy issues. Don’t be so concerned about advancing a particular position that you forget to consider and weigh the other side(s) of the argument.|
|C||The last step is to state your conclusion on the legal issue being discussed. Although you will include overall conclusions elsewhere in your memorandum, it is also important to reach a conclusion on each legal issue as it is dealt with in turn.|
IRAC need not be applied rigidly as long as all the elements are covered. Your decision about how to divide up the legal issues will influence the way that you apply IRAC.
- For example, if you are dealing with cases from a number of different jurisdictions you can structure your discussion separately for each jurisdiction, or cover all jurisdictions when you deal with a particular issue.
- You may want to discuss each sub-issue separately. However, if that would result in repetitive discussion of the same cases in different sections of the memo, it might be better to combine your discussion of some of the sub-issues.
See the Sample Memorandum for an example of the Discussion portion of a legal memorandum.
A note on citations
Your memorandum may be used to draft a letter to the client or a brief to the court, so it is extremely important to cite all of your sources (and pinpoint to paragraph or page numbers as much as possible). It is better to err on the side of providing too many citations than not providing enough. Remember that the ultimate goal of legal citations is to ensure your reader can easily find any of the material you reference.
The Sample Memorandum uses in-text citations. You may choose (or be asked) to use footnotes or endnotes instead. It is important to adopt a consistent style throughout your memorandum, rather than switching between in-text citations and footnotes.
You may also wish to include hyperlinks in your citations where appropriate.
Please see also the page dedicated to legal citation.
A note on bibliographies
If your memorandum is especially long or complex, you may wish to provide a bibliography at the end, listing all of the authorities you have cited. This bibliography can be divided into sub-sections for legislation; jurisprudence; and secondary materials (like textbooks and journal articles). The items in each section should be listed in alphabetical order.