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Artist is a well-known painter, specializing in oil portraits. In March, Patron emailed Artist to ask how much money Artist would charge for a commissioned portrait. Artist responded by mail:
Thank you for your inquiry. I charge $10,000 for a custom, one-of-a-kind oil painting of the subject of your choice. Typically, I need four or five sessions with the subject, lasting about two hours per session. (Of course, that is with breaks as the subject requires, as few people without modeling experience are comfortable holding one position for two consecutive hours!) My paintings under such agreements are 14 inches by 14 inches, although I am happy to paint larger portraits upon request, for a slightly higher fee.
I would love to commission a portrait of my dog. Do you also paint animals, or is your previous description applicable only to subjects who are people?
Artist emailed back:
Yes, I have painted multiple portraits of animals in the past. All other terms from my previous email are the same, except that the length of sessions with the subject varies, depending on how well a specific dog tolerates sitting still. I would be delighted to paint a portrait of your dog, and I hope you reply agreeing to my offer!
On March 21, Patron emailed a response accepting Artist’s offer. However, Patron was disappointed to receive a email from Artist’s attorney the following week that read:
I regret to inform you that Artist passed away suddenly, on the evening of March 24. Due to his death, all contracts and agreements for future work will obviously not be honored.
Patron has subsequently sued Artist’s estate for breach of contract.
Assume the same facts as in scenario 1, except that instead of dying on March 24, Artist died on the evening of March 19, shortly after he sent his last email to Patron.