Answer to Bar Question 04/28/08

(B) is the best response, because it correctly states that the notice fulfills the requirements of a public offer.  A public offer requires sufficient definiteness to qualify as an offer at all.  The key factors to consider are whether it contains the language of an offer, and a quantity term (if it doesn't, it will be considered merely an invitation for offers).  Here, the offer was specific as to quantity - only one student could win - and it contains the language of a promise - "The faculty ...offers."  As such, the notice creates an offer for a unilateral contract, which any student could accept by winning the competition, having completed performance with knowledge of the offer.  Since B correctly identifies the notice as containing a contractual offer, it's the best response. 

(A) is not the best response, because the notice is sufficiently definite to constitute an offer.  The key here is distinguishing a public offer from an invitation for offers, which most ads are.  The distinction is important because a public offer creates a power of acceptance in the offerees, such that if offeree accepts, a binding contract will be formed.  An invitation for offers, on the other hand, doesn't give anyone the power to create a binding contract.

The thing that normally makes an ad an invitation instead of an offer is that it is indefinite, specifically in terms of the lack of language of a promise, and quantity.  That's not the case here.  The notice is specific as to quantity (only one student could win), price ($500), and is worded as a promise ("The faculty...offers").  As such, it creates an immediate power of acceptance in any student, such that if a student wins the competition having completed performance with knowledge of the offer, the faculty will be bound.  (Note that the offer is for a unilateral contract, since it can only be accepted by performance, not a return promise.)  Since option A mischaracterizes the notice as only an invitation to deal, it's not the best response. 

(C) is not the best response, because failure to identify the offeree, in the context of a public offer, would not destroy the offer.  A public offer requires sufficient definiteness to qualify as an offer at all.  The key factors to consider are whether it contains the language of an offer, and a quantity term (if it doesn't, it will be considered merely an invitation for offers).  Here, the offer is specific as to quantity - only one student could win - and it contains the language of a promise - "The faculty...offers."  As such, the notice creates an offer for a unilateral contract, which any student could accept by winning the competition, having completed performance with knowledge of the offer.  Thus, while a typical offer must identify the offeree, a public offer (like the offer of a reward) cannot, by dint of its nature, identify the offeree.  However if it's sufficiently definite as to the language of a promise, and quantity, it's an offer nonetheless.  Since C doesn't recognize this, it's not the best response. 

(D) is not the best response, because the promise made by the faulty in the notice was a bargain promise, not a conditional promise.  This is an important distinction, because a conditional promise is not enforceable, whereas a bargain promise, when it's in the form of an offer (as here), creates the power of acceptance in an offeree.  The difference between the two turns on whether the parties consider performing the condition as the "price" of the promise; if they do, it's an enforceable, bargain promise.  If not, it's a conditional promise.  Say these facts were different, and Student had received a note from the law school dean after winning the contest, saying, "Congratulations on winning the *^#{+ obscenity contest.  I have a check from the school for $500 for you, and I'll give it to you if you come to my office at 2 p.m."  This is a conditional promise, because the dean intended to make a gift, and Student's going to the office couldn't be construed as the price of the promise for $500.  Under the facts as they are in the question, however, things are entirely different.  It's clear that both the faculty and Student considered the condition stated - winning the contest - as the price for the offer of $500.  Thus, the promise was a bargain promise for a unilateral contract, which Student accepted by winning the contest (having completed performance with knowledge of the offer).  Since D mischaracterizes the promise, it's not the best response.