ORS Chapter 81
Chapter 81 — Tenderand Receipts; Choice of Law for Contracts
2009 EDITION
TENDERAND RECEIPTS; CHOICE OF LAW
COMMERCIALTRANSACTIONS
TENDERAND RECEIPTS
81.010 Effectof unaccepted offer in writing to pay or deliver
81.020 Objectionto tender
81.030 Receiptfor paying money or delivering instruments or property
CHOICEOF LAW FOR CONTRACTS
(Generally)
81.100 Definitionsfor ORS 81.100 to 81.135
81.102 Applicability
(ContractsGoverned by Oregon Law)
81.105 Specifictypes of contracts governed by Oregon law
81.110 Validityof form
81.112 Capacityto contract
81.115 Consent
(Choiceof Law Made by Parties)
81.120 Choiceof law made by parties
81.125 Limitationson choice of law by parties
81.130 Generalrule
(PresumptiveRules)
81.135 Presumptiverules for specific types of contracts
SPECIALPROVISIONS FOR CONSUMER CONTRACTS
81.150 Revocationof contract provision requiring consumer to assert claim outside state;requirements; attorney fees
TENDERAND RECEIPTS
81.010Effect of unaccepted offer in writing to pay or deliver. An offer inwriting to pay a particular sum of money or to deliver a written instrument orspecific personal property is, if not accepted, equivalent to the actualproduction and tender of the money, instrument or property.
81.020Objection to tender.The person to whom a tender is made shall at that time specify any objectionthe person may have to the money, instrument or property or the person shall bedeemed to have waived it; and if the objection is to the amount of money, theterms of the instrument or the amount or kind of property, the person mustspecify the amount, terms or kind which the person requires or be precludedfrom objecting afterwards.
81.030Receipt for paying money or delivering instruments or property. Whoever paysmoney or delivers an instrument or property is entitled to a receipt thereforfrom the person to whom the payment or delivery is made, and may demand aproper signature to such receipt as a condition of the payment or delivery.
CHOICEOF LAW FOR CONTRACTS
(Generally)
81.100Definitions for ORS 81.100 to 81.135. For the purposes of ORS 81.100 to81.135:
(1)“Law” means any rule of general legal applicability adopted by a state, whetherthat rule is domestic or foreign and whether derived from international law, aconstitution, statute, other publicly adopted measure or published judicialprecedent. Except for references to the law of Oregon, “law” does not includerules governing choice of law.
(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, otherNative American group or Native Hawaiian group that is recognized by federallaw or formally acknowledged by a state of the United States, and any foreigncountry, including any territorial subdivision or other entity with its ownsystem of laws. [2001 c.164 §1]
81.102Applicability.ORS 81.100 to 81.135 govern the choice of law applicable to any contract, orpart of a contract, when a choice between the laws of different states is atissue. ORS 81.100 to 81.135 do not apply if another Oregon statute expresslydesignates the law applicable to the contract or part of a contract. ORS 81.100to 81.135 do not apply to any contract in which one of the parties is afinancial institution, as defined by 15 U.S.C. 6827, as in effect on January 1,2002. [2001 c.164 §2]
(ContractsGoverned by Oregon Law)
81.105Specific types of contracts governed by Oregon law. Notwithstandingany other provision of ORS 81.100 to 81.135, but subject to the limitations onapplicability imposed by ORS 81.102, the law of Oregon applies to the followingcontracts:
(1)A contract for services to be rendered in Oregon, or for goods to be deliveredin Oregon, if Oregon or any of its agencies or subdivisions is a party to thecontract. The application of Oregon’s law pursuant to this subsection may bewaived by a person authorized by Oregon’s law to make the waiver.
(2)A contract for construction work to be performed primarily in Oregon.
(3)A contract of employment for services to be rendered primarily in Oregon by aresident of Oregon.
(4)(a)A consumer contract, if:
(A)The consumer is a resident of Oregon at the time of contracting; and
(B)The consumer’s assent to the contract is obtained in Oregon, or the consumer isinduced to enter into the contract in substantial measure by an invitation oradvertisement in Oregon.
(b)For the purposes of this subsection, a consumer contract is a contract for thesupply of goods or services that are designed primarily for personal, familialor household use. [2001 c.164 §3]
81.110Validity of form.A contract is valid as to form if the contract meets the requirementsprescribed 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 statefrom which any party or the party’s agent has assented to the contract unlessthat state has no other connection to the parties or the transaction. [2001c.164 §4]
81.112Capacity to contract.(1) A party has the capacity to enter into a contract if the party has thatcapacity under the law of the state in which the party resides or the lawapplicable 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 statein which the party resides may assert that incapacity against a party that knewor should have known of the incapacity at the time the parties entered into thecontract. If a party establishes lack of capacity in the manner provided bythis subsection, the consequences of the party’s incapacity are governed by thelaw of the state in which the incapable party resides. [2001 c.164 §5]
81.115Consent.(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 whoseassent to a contract was obtained in the state of the party’s residence, orwhose conduct leading to the contract was primarily confined to that state, mayinvoke the law of that state to establish that the party did not consent to thecontract or that the consent was not valid by reason of fraud or duress. [2001c.164 §6]
(Choiceof Law Made by Parties)
81.120Choice of law made by parties. (1) Except as specifically provided byORS 81.105, 81.110, 81.112, 81.115 or 81.125, the contractual rights and dutiesof 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 thecontract. In a standard-form contract drafted primarily by only one of theparties, any choice of law must be express and conspicuous.
(3)The choice of law may be made or modified after the parties enter into thecontract. Any choice of law made or modified after the parties enter into thecontract must be by express agreement.
(4)Unless the parties provide otherwise, a choice of law or modification of thatchoice operates retrospectively to the time the parties entered into thecontract. Retrospective operation under the provisions of this subsection maynot prejudice the rights of third parties. [2001 c.164 §7]
81.125Limitations on choice of law by parties. (1) The law chosen by the partiespursuant 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 theact is to be performed under the contract;
(b)Prohibit a party from performing an act required by the law of the state whereit is to be performed under the contract; or
(c)Contravene an established fundamental policy embodied in the law that wouldotherwise govern the issue in dispute under ORS 81.130.
(2)For purposes of subsection (1)(c) of this section, an established policy isfundamental only if the policy reflects objectives or gives effect to essentialpublic or societal institutions beyond the allocation of rights and obligationsof parties to a contract at issue. [2001 c.164 §8]
81.130General rule.To the extent that an effective choice of law has not been made by the partiespursuant 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 toan issue in a contract are governed by the law, in light of the multistateelements of the contract, that is the most appropriate for a resolution of thatissue. The most appropriate law is determined by:
(1)Identifying the states that have a relevant connection with the transaction orthe parties, such as the place of negotiation, making, performance or subjectmatter of the contract, or the domicile, habitual residence or pertinent placeof business of a party;
(2)Identifying the policies underlying any apparently conflicting laws of thesestates 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 andinternational systems; and
(b)Facilitating the planning of transactions, protecting a party from undueimposition by another party, giving effect to justified expectations of theparties concerning which state’s law applies to the issue and minimizingadverse effects on strong legal policies of other states. [2001 c.164 §9]
(PresumptiveRules)
81.135Presumptive rules for specific types of contracts. (1) To theextent that an effective choice of law has not been made by the partiespursuant 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 aregoverned by the law of the state specified in subsection (2) of this sectionunless a party demonstrates that the application of that law would be clearlyinappropriate under the principles of ORS 81.130.
(2)(a)Contracts involving the occupancy of real property, the land use of property orthe recording of interests in real property are governed by the law of thestate where the property is situated.
(b)Contracts for personal services are governed by the law of the state where theservices are to be primarily rendered pursuant to the contract.
(c)Contracts for franchises, as defined in ORS 650.005, except for licensingclauses in such contracts, are governed by the law of the state where thefranchise is to operate pursuant to the contract.
(d)Licensing contracts and licensing clauses in contracts for franchises, asdefined in ORS 650.005, are governed by the law of the state where the licensorhas its place of business or residence with the closest connection to thetransactions between the parties. For purposes of this subsection, “licensing”means a grant of a privilege, created by contract, that allows one party, thelicensee, to use the property or right of another party, the licensor.
(e)Agency contracts are governed by the law of the state where the agent’s dutiesare to be primarily performed. [2001 c.164 §10]
SPECIALPROVISIONS FOR CONSUMER CONTRACTS
81.150Revocation of contract provision requiring consumer to assert claim outsidestate; requirements; attorney fees. (1) For the purposes of this section:
(a)“Consumer” means an individual who is purchasing goods or services forpersonal, family or household purposes.
(b)“Consumer contract” means a contract entered into by a consumer for thepurchase of goods or services for personal, family or household purposes, inwhich the total cost of the purchase is $15,000 or less.
(2)A consumer may revoke a provision in a consumer contract that requires theconsumer to assert a claim against the other party to the contract, or respondto a claim by the other party to the contract, in a forum that is not in thisstate. If the provision requires arbitration in a forum that is not in thisstate, the sole effect of a revocation under this section is that anyevidentiary hearing, oral argument or other proceeding that requires or allowsattendance by the consumer must be conducted in this state.
(3)Revocation of a provision under this section must be made in writing andcommunicated by the consumer to the other party within a reasonable time aftera dispute arises.
(4)This section applies only to a consumer contract that was entered into by aconsumer when the consumer was a resident of this state.
(5)A party seeking to enforce a revoked provision is liable for reasonableattorney fees incurred by a consumer in any litigation that results from theattempted enforcement of the revoked provision. [2007 c.890 §1]
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