Clive and Bill were not friends but worked in the same firm. Both worked with computers and had computers at home. They entered a contract in which Clive agreed to sell Bill his "Apple, printer, and a compatible word processing program for $3000." When Bill went to take delivery of the goods, he realized that there had been a great mistake. He thought Clive was selling his Apple Macintosh. By "Apple" Clive meant his Apple IIe. Furthermore, unknown to both of them at the time of the contract, the program disk had been destroyed by some coffee accidentally spilled on it by a friend of Clive's wife. Bill refused to go through with the deal. On these facts, which of the following is true if Clive sues Bill?
◦ With regard to the program disk, since all elements of a contract exist (i.e., offer, acceptance, consideration, etc.), Bill must pay for it.
◦ With regard to which computer is the subject matter of the sale, the court will examine which interpretation is the more reasonable; if they are equally reasonable, that part of the contract, at least, will be void.
◦ With regard to which computer is the subject matter of the contract, the court will determine which computer was meant to be sold by the seller and declare that one to be the subject matter of the sale.
◦ Since the parties to the contract have a different understanding as to the subject matter of the sale, they can ask the court for rectification, that is, for the court to rewrite the contract.
◦ This is an example of caveat emptor and the purchaser has no remedy.
Bill Viola, The Reflecting Pool.
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