2007 Oregon Code - Chapter 81 :: Chapter 81 - Tender and Receipts - Choice of Law for Contracts
Chapter 81 Tender
and Receipts; Choice of Law for Contracts
2007 EDITION
TENDER AND RECEIPTS; CHOICE OF LAW
COMMERCIAL TRANSACTIONS
TENDER AND RECEIPTS
81.010 Effect
of unaccepted offer in writing to pay or deliver
81.020 Objection
to tender
81.030 Receipt
for paying money or delivering instruments or property
CHOICE OF LAW FOR CONTRACTS
(Generally)
81.100 Definitions
for ORS 81.100 to 81.135
81.102 Applicability
(Contracts Governed by
81.105 Specific
types of contracts governed by
81.110 Validity
of form
81.112 Capacity
to contract
81.115 Consent
(Choice of Law Made by Parties)
81.120 Choice
of law made by parties
81.125 Limitations
on choice of law by parties
81.130 General
rule
(Presumptive Rules)
81.135 Presumptive
rules for specific types of contracts
SPECIAL PROVISIONS FOR CONSUMER CONTRACTS
81.150 Revocation
of contract provision requiring consumer to assert claim outside state;
requirements; attorney fees
TENDER AND RECEIPTS
81.010
Effect of unaccepted offer in writing to pay or deliver. An offer in writing to pay a particular sum
of money or to deliver a written instrument or specific personal property is,
if not accepted, equivalent to the actual production and tender of the money,
instrument or property.
81.020
Objection to tender. The
person to whom a tender is made shall at that time specify any objection the
person may have to the money, instrument or property or the person shall be
deemed to have waived it; and if the objection is to the amount of money, the
terms of the instrument or the amount or kind of property, the person must
specify the amount, terms or kind which the person requires or be precluded
from objecting afterwards.
81.030
Receipt for paying money or delivering instruments or property. Whoever pays money or delivers an instrument
or property is entitled to a receipt therefor from the person to whom the
payment or delivery is made, and may demand a proper signature to such receipt
as a condition of the payment or delivery.
CHOICE OF LAW
FOR CONTRACTS
(Generally)
81.100
Definitions for ORS 81.100 to 81.135. For the purposes of ORS 81.100 to 81.135:
(1) Law means any rule of general legal
applicability adopted by a state, whether that rule is domestic or foreign and
whether derived from international law, a constitution, statute, other publicly
adopted measure or published judicial precedent. Except for references to the
law of
(2) State means the United States, any
state of the United States, any territory, possession or other jurisdiction of
the United States, any Indian tribe, other Native American group or Native
Hawaiian group that is recognized by federal law or formally acknowledged by a
state of the United States, and any foreign country, including any territorial
subdivision or other entity with its own system of laws. [2001 c.164 §1]
81.102
Applicability. ORS 81.100 to
81.135 govern the choice of law applicable to any contract, or part of a
contract, when a choice between the laws of different states is at issue. ORS
81.100 to 81.135 do not apply if another
(Contracts
Governed by
81.105
Specific types of contracts governed by
(1) A contract for services to be rendered
in
(2) A contract for construction work to be
performed primarily in
(3) A contract of employment for services
to be rendered primarily in
(4)(a) A consumer contract, if:
(A) The consumer is a resident of
(B) The consumers assent to the contract
is obtained in
(b) For the purposes of this subsection, a
consumer contract is a contract for the supply of goods or services that are
designed primarily for personal, familial or household use. [2001 c.164 §3]
81.110
Validity of form. A contract
is valid as to form if the contract meets the requirements prescribed either by
the law chosen by the parties under ORS 81.120 and 81.125, the law applicable
under ORS 81.105, 81.130 or 81.135, or the law of the state from which any
party or the partys agent has assented to the contract unless that state has
no other connection to the parties or the transaction. [2001 c.164 §4]
81.112
Capacity to contract. (1) A
party has the capacity to enter into a contract if the party has that capacity
under the law of the state in which the party resides or the law applicable to
this issue under ORS 81.105, 81.130 or 81.135.
(2) A party that lacks capacity to enter
into a contract under the law of the state in which the party resides may
assert that incapacity against a party that knew or should have known of the
incapacity at the time the parties entered into the contract. If a party
establishes lack of capacity in the manner provided by this subsection, the
consequences of the partys incapacity are governed by the law of the state in
which the incapable party resides. [2001 c.164 §5]
81.115
Consent. (1) A party has consented
to a contract if the law applicable under ORS 81.105, 81.130 or 81.135 so
provides.
(2) In a consumer contract or employment
contract, the consumer or employee whose assent to a contract was obtained in
the state of the partys residence, or whose conduct leading to the contract
was primarily confined to that state, may invoke the law of that state to
establish that the party did not consent to the contract or that the consent
was not valid by reason of fraud or duress. [2001 c.164 §6]
(Choice of Law
Made by Parties)
81.120
Choice of law made by parties.
(1) Except as specifically provided by ORS 81.105, 81.110, 81.112, 81.115 or
81.125, the contractual rights and duties of the parties are governed by the
law or laws that the parties have chosen. The choice of law may extend to the
entire contract or to part of a contract.
(2) The choice of law must be express or
clearly demonstrated from the terms of the contract. In a standard-form
contract drafted primarily by only one of the parties, any choice of law must
be express and conspicuous.
(3) The choice of law may be made or
modified after the parties enter into the contract. Any choice of law made or
modified after the parties enter into the contract must be by express
agreement.
(4) Unless the parties provide otherwise,
a choice of law or modification of that choice operates retrospectively to the
time the parties entered into the contract. Retrospective operation under the
provisions of this subsection may not prejudice the rights of third parties. [2001
c.164 §7]
81.125
Limitations on choice of law by parties. (1) The law chosen by the parties pursuant to ORS 81.120 does not
apply to the extent that its application would:
(a) Require a party to perform an act
prohibited by the law of the state where the act is to be performed under the
contract;
(b) Prohibit a party from performing an
act required by the law of the state where it is to be performed under the
contract; or
(c) Contravene an established fundamental
policy embodied in the law that would otherwise govern the issue in dispute
under ORS 81.130.
(2) For purposes of subsection (1)(c) of
this section, an established policy is fundamental only if the policy reflects
objectives or gives effect to essential public or societal institutions beyond
the allocation of rights and obligations of parties to a contract at issue. [2001
c.164 §8]
81.130
General rule. To the extent
that an effective choice of law has not been made by the parties pursuant to
ORS 81.120 or 81.125, or is not prescribed by ORS 81.105, 81.110, 81.112,
81.115 or 81.135, the rights and duties of the parties with regard to an issue
in a contract are governed by the law, in light of the multistate elements of
the contract, that is the most appropriate for a resolution of that issue. The
most appropriate law is determined by:
(1) Identifying the states that have a
relevant connection with the transaction or the parties, such as the place of
negotiation, making, performance or subject matter of the contract, or the
domicile, habitual residence or pertinent place of business of a party;
(2) Identifying the policies underlying
any apparently conflicting laws of these states that are relevant to the issue;
and
(3) Evaluating the relative strength and
pertinence of these policies in:
(a) Meeting the needs and giving effect to
the policies of the interstate and international systems; and
(b) Facilitating the planning of
transactions, protecting a party from undue imposition by another party, giving
effect to justified expectations of the parties concerning which states law
applies to the issue and minimizing adverse effects on strong legal policies of
other states. [2001 c.164 §9]
(Presumptive
Rules)
81.135
Presumptive rules for specific types of contracts. (1) To the extent that an effective choice
of law has not been made by the parties pursuant to ORS 81.120 or 81.125, or is
not prescribed by ORS 81.105, 81.110, 81.112 or 81.115, contracts described in
subsection (2) of this section are governed by the law of the state specified
in subsection (2) of this section unless a party demonstrates that the
application of that law would be clearly inappropriate under the principles of
ORS 81.130.
(2)(a) Contracts involving the occupancy
of real property, the land use of property or the recording of interests in
real property are governed by the law of the state where the property is
situated.
(b) Contracts for personal services are
governed by the law of the state where the services are to be primarily
rendered pursuant to the contract.
(c) Contracts for franchises, as defined
in ORS 650.005, except for licensing clauses in such contracts, are governed by
the law of the state where the franchise is to operate pursuant to the
contract.
(d) Licensing contracts and licensing
clauses in contracts for franchises, as defined in ORS 650.005, are governed by
the law of the state where the licensor has its place of business or residence
with the closest connection to the transactions between the parties. For
purposes of this subsection, licensing means a grant of a privilege, created
by contract, that allows one party, the licensee, to use the property or right
of another party, the licensor.
(e) Agency contracts are governed by the
law of the state where the agents duties are to be primarily performed. [2001
c.164 §10]
SPECIAL
PROVISIONS FOR CONSUMER CONTRACTS
81.150
Revocation of contract provision requiring consumer to assert claim outside
state; requirements; attorney fees. (1) For the purposes of this section:
(a) Consumer means an individual who is
purchasing goods or services for personal, family or household purposes.
(b) Consumer contract means a contract
entered into by a consumer for the purchase of goods or services for personal,
family or household purposes, in which the total cost of the purchase is
$15,000 or less.
(2) A consumer may revoke a provision in a
consumer contract that requires the consumer to assert a claim against the
other party to the contract, or respond to a claim by the other party to the
contract, in a forum that is not in this state. If the provision requires
arbitration in a forum that is not in this state, the sole effect of a
revocation under this section is that any evidentiary hearing, oral argument or
other proceeding that requires or allows attendance by the consumer must be
conducted in this state.
(3) Revocation of a provision under this
section must be made in writing and communicated by the consumer to the other
party within a reasonable time after a dispute arises.
(4) This section applies only to a
consumer contract that was entered into by a consumer when the consumer was a
resident of this state.
(5) A party seeking to enforce a revoked
provision is liable for reasonable attorney fees incurred by a consumer in any
litigation that results from the attempted enforcement of the revoked
provision. [2007 c.890 §1]
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