Contracts/Acceptance: Difference between revisions

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(Interpreted and adapted from Lawson, The Principles of the American Law of Contract at Law and in Equity, 3rd ed., St. Louis: Thomas Law Book Company (1923))
(Interpreted and adapted from Lawson, The Principles of the American Law of Contract at Law and in Equity, 3rd ed., St. Louis: Thomas Law Book Company (1923))
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====Communication of acceptance====
====Communication of acceptance====
There are several rules dealing with the communication of acceptance:
There are several rules dealing with the communication of acceptance:
* The acceptance must be communicated.<ref>''[[Powell v Lee]]'' (1908) 99 L.T. 284</ref><ref>''Robophone Facilities Ltd v. Blank'' [1966] 3 All E.R. 128.</ref> Theisger LJ said in Household Fire and Carriage that "an acceptance which remains in the breast of the acceptor without being actually and by legal implication communicated to the offeror, is no binding acceptance".<ref>Household Fire and Carriage (1879) 4 Exch Div 216</ref> Prior to acceptance, an offer may be withdrawn.
* The acceptance must be communicated.<ref>''[[Powell v Lee]]'' (1908) 99 L.T. 284</ref><ref>''[[Robophone Facilities Ltd v. Blank]]'' [1966] 3 All E.R. 128.</ref> Theisger LJ said in ''[[Household Fire and Carriage]]'' that "an acceptance which remains in the breast of the acceptor without being actually and by legal implication communicated to the offeror, is no binding acceptance".<ref>''Household Fire and Carriage'', (1879) 4 Exch Div 216</ref> Prior to acceptance, an offer may be withdrawn.
* As acceptance must be communicated, the offeror cannot include an Acceptance by Silence clause. This was affirmed in ''[[Felthouse v Bindley]]'',<ref name="Felthouse v Bindley">{{cite BAILII |litigants=[[Felthouse v Bindley]] |year=1862 |court=EWHC |num=J35 |parallelcite=[1862] 142 ER 1037}}.</ref> here an uncle made an offer to buy his nephew's horse, saying that if he didn't hear anything else he would "consider the horse mine". This did not stand up in court, and it was decided there could not be acceptance by silence.
* As acceptance must be communicated, the offeror cannot include an Acceptance by Silence clause. This was affirmed in ''[[Felthouse v Bindley]]'',<ref name="Felthouse v Bindley">{{cite BAILII |litigants=[[Felthouse v Bindley]] |year=1862 |court=EWHC |num=J35 |parallelcite=[1862] 142 ER 1037}}.</ref> here an uncle made an offer to buy his nephew's horse, saying that if he didn't hear anything else he would "consider the horse mine". This did not stand up in court, and it was decided there could not be acceptance by silence.
* An exception exists in the case of unilateral contracts, in which the offeror makes an offer to the world which can be accepted by some act. A classic instance of this is the case of ''[[Carlill v Carbolic Smoke Ball Co]].'' [1893] 2 Q.B. 484 in which an offer was made to pay £100 to anyone who having bought the offeror's product and used it in accordance with the instructions nonetheless contracted influenza. The plaintiff who was Mrs Carlill bought the smoke ball and used it according to the instructions but she contracted influenza. She sued the Carbolic Smoke Ball Co. for £100. The court held that the inconvenience she went through by performing the act amounted to acceptance and therefore ordered £100 to be given to Mrs. Carlill. Her actions accepted the offer - there was no need to communicate acceptance. Typical cases of unilateral offers are advertisements of rewards (e.g., for the return of a lost dog).
* An exception exists in the case of unilateral contracts, in which the offeror makes an offer to the world which can be accepted by some act. A classic instance of this is the case of ''[[Carlill v Carbolic Smoke Ball Co]].'' [1893] 2 Q.B. 484 in which an offer was made to pay £100 to anyone who having bought the offeror's product and used it in accordance with the instructions nonetheless contracted influenza. The plaintiff who was Mrs Carlill bought the smoke ball and used it according to the instructions but she contracted influenza. She sued the Carbolic Smoke Ball Co. for £100. The court held that the inconvenience she went through by performing the act amounted to acceptance and therefore ordered £100 to be given to Mrs. Carlill. Her actions accepted the offer - there was no need to communicate acceptance. Typical cases of unilateral offers are advertisements of rewards (e.g., for the return of a lost dog).
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* An offeree is not usually bound if another person accepts the offer on their behalf without his authorisation, the exceptions to which are found in the law of agency, where an agent may have apparent or ostensible authority, or the usual authority of an agent in the particular market, even if the principal did not realise what the extent of this authority was, and someone on whose behalf an offer has been purportedly accepted may also ratify the contract within a reasonable time, binding both parties: see [[agent (law)]].
* An offeree is not usually bound if another person accepts the offer on their behalf without his authorisation, the exceptions to which are found in the law of agency, where an agent may have apparent or ostensible authority, or the usual authority of an agent in the particular market, even if the principal did not realise what the extent of this authority was, and someone on whose behalf an offer has been purportedly accepted may also ratify the contract within a reasonable time, binding both parties: see [[agent (law)]].
* It may be implied from the construction of the contract that the offeror has dispensed with the requirement of communication of acceptance (called waiver of communication - which is generally implied in unilateral contracts).<ref>''[[Re Selectmove Ltd]]'' [1994] BCC 349.</ref>  
* It may be implied from the construction of the contract that the offeror has dispensed with the requirement of communication of acceptance (called waiver of communication - which is generally implied in unilateral contracts).<ref>''[[Re Selectmove Ltd]]'' [1994] BCC 349.</ref>  
* If the offer specifies a method of acceptance (such as by [[Mail|post]] or [[fax]]), acceptance must be by a method that is no less effective from the offeror's point of view than the method specified. The exact method prescribed may have to be used in some cases but probably only where the offeror has used very explicit words such as "by registered post, and by that method only".<ref>''Yates Building Co. Ltd v. R.J. Pulleyn & Sons (York) Ltd'' (1975) 119 Sol. Jo. 370.</ref>
* If the offer specifies a method of acceptance (such as by [[Mail|post]] or [[fax]]), acceptance must be by a method that is no less effective from the offeror's point of view than the method specified. The exact method prescribed may have to be used in some cases but probably only where the offeror has used very explicit words such as "by registered post, and by that method only".<ref>''[[Yates Building Co. Ltd v. R.J. Pulleyn & Sons (York) Ltd]]'', (1975) 119 Sol. Jo. 370.</ref>
* However, acceptance may be inferred from conduct.<ref>''[[Brogden v. Metropolitan Railway Company]]'' (1877) 2 App. Cas. 666</ref><ref>''Rust v. Abbey Life Assurance Co. Ltd''</ref>
* However, acceptance may be inferred from conduct.<ref>''[[Brogden v. Metropolitan Railway Company]]'' (1877) 2 App. Cas. 666</ref><ref>''[[Rust v. Abbey Life Assurance Co. Ltd]]''</ref>


====Counter-offers and correspondence====
====Counter-offers and correspondence====
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===Acceptance by Assent===
===Acceptance by Assent===
The simplest form of offer and acceptance, viz., the offer of a promise and its acceptance by simple assent, is not applicable to the law of contracts except in the single case of contracts under seal. The reason is that in our law no promise, which is not under seal, is binding unless the promisor obtains some benefit in return for his promise, and this benefit is called "consideration." Therefore, if a man says to another, "I will give you $100." or "I will do such and such a thing for you." the other by simply assenting to the proposal without doing something in return for the promise can not create a binding contract. But if A promises B under seal that he will do a certain act or pay a certain sum, when B has assented to the proposal both are bound, and there is a contract. Until B has assented there is an offer, which is irrevocable so far as A is concerned,<ref>''[[O'Brien v. Boland]]'', 166 Mass. 48l, 44 N. E. Rep. 602; ''[[McMillan v. Ames]]'', 33 Minn. 257; ''[[Williams v. Forbes]]'', 114 Ill. 167, 28 N. E. 463.</ref> owing to the particular form in which it was made, though it cannot bind B until he has assented to it. For a man cannot be forced to accept a benefit, though acceptance is sometimes presumed when the thing is clearly for his benefit.<ref>''See'' [[Contracts/Implication-in-fact#Acceptance of Goods or Services]]</ref>
The simplest form of offer and acceptance, viz., the offer of a promise and its acceptance by simple assent, is not applicable to the law of contracts except in the single case of contracts under seal. The reason is that in our law no promise, which is not under seal, is binding unless the promisor obtains some benefit in return for his promise, and this benefit is called "consideration." Therefore, if a man says to another, "I will give you $100." or "I will do such and such a thing for you." the other by simply assenting to the proposal without doing something in return for the promise can not create a binding contract. But if A promises B under seal that he will do a certain act or pay a certain sum, when B has assented to the proposal both are bound, and there is a contract. Until B has assented there is an offer, which is irrevocable so far as A is concerned,<ref>''[[O'Brien v. Boland]]'', 166 Mass. 48l, 44 N. E. Rep. 602; ''[[McMillan v. Ames]]'', 33 Minn. 257; ''[[Williams v. Forbes]]'', 114 Ill. 167, 28 N. E. 463.</ref> owing to the particular form in which it was made, though it cannot bind B until he has assented to it. For a man cannot be forced to accept a benefit, though acceptance is sometimes presumed when the thing is clearly for his benefit.


===Acceptance by Promise===
===Acceptance by Promise===
An offer may be accepted by giving a promise, as where a person offers to pay another a certain sum if he will do something for him on a future day, and the other accepts by promising to do so according to the conditions of the offer. The promise may be either express or implied. It is express where it is proved by what the offeree said; and implied where it is proved that he so acted as to raise an inference that he had made the promise alleged. If a person sends goods to another, and the latter uses the goods, or deals with them as his, he will be liable on an implied promise to pay what the goods are worth, unless he had a right to suppose, and did suppose, that a gift was intended. The acceptance by their use raises an implied promise to pay for them.
An offer may be accepted by giving a promise, as where a person offers to pay another a certain sum if he will do something for him on a future day, and the other accepts by promising to do so according to the conditions of the offer. The promise may be either express or implied. It is express where it is proved by what the offeree said; and implied where it is proved that he so acted as to raise an inference that he had made the promise alleged. If a person sends goods to another, and the latter uses the goods, or deals with them as his, he will be liable on an implied promise to pay what the goods are worth, unless he had a right to suppose, and did suppose, that a gift was intended. The acceptance by their use raises an implied promise to pay for them.<ref>''See'' [[Contracts/Implication-in-fact|Implied Contracts]]</ref>


===Acceptance by Act===
===Acceptance by Act===
Where the offer is made conditional on the offeree doing something, the doing of the thing required completes the agreement.<ref>''[[Dick v. Fuller]]'', 213 Fed. 98.</ref>


"If A promises B to pay him a sum of money if he will do a particular act, and B does it, the promise thereupon becomes binding, although B at the time of the promise does not engage to do the act. In the intermediate time the obligation is inert or the promise suspended, and until the performance of the condition there is no consideration and the promise is ''nudum pactum''; but on the performance of the condition by the promisee it is clothed with a valid consideration which relates back to the promise, and it then became obligatory. So if a reward be offered for the apprehension of a culprit or for the doing of any other lawful act, the promise when made is ''nudum pactum'', but when any one relying upon the promised reward performs the condition this is a good consideration for the previous promise and it thereupon becomes binding on the promisor."<ref>''[[Tram v. Gould]]'', 5 Pick. 30.</ref>
Pothier mentions many cases in the Civil law where A promises to do something, if B will do something else. There is nothing binding on B, but when he does the act it becomes binding on A.<ref>''[[See Fishmongers Co. v . Robertson]]'', 5 M. & G. 171.</ref> So
{{Quote|when a person says, "In case you choose to employ this man for a week, I will be responsible for all sums, as he shall receive, during that time and neglect to pay over to you," the party indemnified is not therefore bound to employ him, but if he do employ him, then the guaranty attaches and becomes binding on the party who gave it.<ref>''[[Kennaway v . Treleavan]]'', 5 M. & W. 498.</ref>}}
So if
{{Quote|I say, "if you will furnish goods to a third person, I will guarantee the payment," there you are not bound to furnish them, yet if you do furnish them, in pursuance of the contract, you may sue me on my guaranty.<ref>''[[Morton v. Burn]]'', 7 Ad. & Ell. 23.</ref>}}
{{Quote|So if a reward be offered for the apprehension of a culprit or for the doing of any other lawful act, the promise when made is ''nudum pactum''; but when any one relying upon the promised reward performs the condition, this is a good consideration for the previous promise, and it thereupon becomes binding on the promisor.}}
The everyday case of a written order for goods is in point. A man mails an order for certain goods to be sent to him; he receives no reply; the first intimation that the vendor intends to accept the order is the arrival of the goods. If the order is a positive direction to send the goods, it will be enough that the vendor has done so without his having previously notified the vendee of his intention to send them, and to accept the offer. Thus, in ''[[Cooper v. Altimus]]'',<ref>62 Pa. St. 486.</ref> C wrote to A inquiring if he had staves to sell, and A answered : "If you would let me know how much you would give I could get four thousand at $50 per thousand." C replied: "If they are rift staves and good, I will give $35 per thousand delivered at the station." A sent the staves without answering, but they were rejected by C on the ground that his last letter was an offer which should have been accepted in order to complete the contract. The court held that the letter was an order which did not call for a reply, and became obligatory on him when the staves were tendered in accordance with its terms.
Another apt illustration of the principle is where a university, in its advertisement for 1892-93, announced that applicants for admission to the law department were required to pay $50 for the first year and $40 for each successive year. Plaintiff in 1892 paid $50 and was admitted to the junior class. The catalogue for 1893-94 stated that law students in all classes were required to pay $50 a year. In 1893 plaintiff tendered $40 as the fee for admission to the senior class, which was refused, and he paid the $50 under protest. It was held that he was entitled to recover the $10. The student by entering the junior class and paying the $50 accepted defendant's offer, and no other notice was essential. It was the offer of a promise for an act. No one was obliged to accept defendant's offer; but anyone was entitled by its very terms to do so, and plaintiff having done so the contract was complete and binding on defendant. Plaintiff was not under any obligation to take the second year's course, but defendant had not required any promise from him of this kind. Defendant's offer might have said that any person entering the junior class and ''agreeing'' to take the whole course would be entitled to the stated terms, and in such a case this would have been an offer of a promise for a promise, and if no promise had been made before the withdrawal of the offer there would be no contract. But defendant chose to make its promise in consideration of plaintiff's doing something, i.e., entering the junior class and paying $50.<ref>''[[Niedermeyer v. Curators]]'', 61 Mo. App. 654.</ref>
===Acceptance by Silence===
===Acceptance by Silence===



Revision as of 02:34, May 20, 2020


Contracts Treatise
Table of Contents
Contracts Outline
Introduction and Definitions
Introduction
Definitions
Elements
Contract law in the United States
Contract formation
Parties
Offer
Acceptance
Intention to Bind
Formal requisites
Mailbox rule
Mirror image rule
Invitation to deal
Firm offer
Consideration
Consent
Implication-in-fact
Collateral contract
Modification
Merger
Uniform Commercial Code
Uniform Commercial Code
Course of dealing
Course of performance
UCC-1 financing statement
Uniform Commercial Code adoption
Defenses against formation
Lack of capacity
Duress
Undue influence
Illusory promise
Statute of frauds
Uncertainty
Non est factum
Contract interpretation
Governing law
Construction and Operation
Parol evidence rule
Contract of adhesion
Integration clause
Contra proferentem
Excuses for non-performance
Mistake
Misrepresentation
Frustration of purpose
Impossibility
Impracticability
Illegality
Unclean hands
Unconscionability
Accord and satisfaction
Rights of third parties
Privity of contract
Assignment
Delegation
Novation
Third-party beneficiary
Performance or Breach
Necessity of performance
Sufficiency of performance
Anticipatory repudiation
Cover
Exclusion clause
Efficient breach
Deviation
Fundamental breach
Termination
Termination
Rescission
Termination and rescission
Abrogation and rescission
Subsequent contract
Termination
Forfeiture
Remedies
Restitution
Specific performance
Liquidated damages
Punitive damages
Quasi-contractual obligations
Estoppel
Quantum meruit
Actions
Actions in General
Parties to Action
Pleading
Evidence
Questions of Law and Fact
Instructions
Trial and Judgment

A promise or act on the part of an offeree indicating a willingness to be bound by the terms and conditions contained in an offer. Also, the acknowledgment of the drawee that binds the drawee to the terms of a draft.

Test of acceptance

For the acceptance, the essential requirement is that the parties had each from a subjective perspective engaged in conduct manifesting their assent. Under this meeting of the minds theory of contract, a party could resist a claim of breach by proving that he had not be intended to be bound by the agreement, only if it appeared subjectively that he had so intended. This is unsatisfactory, as one party has no way to know another's undisclosed intentions. One party can only act upon what the other party reveals objectively (Lucy v Zehmer, 196 Va 493 84 S.E. 2d 516) to be his intent. Hence, an actual meeting of the minds is not required. Indeed, it has been argued that the "meeting of the minds" idea is entirely a modern error: 19th century judges spoke of "consensus ad idem" which modern teachers have wrongly translated as "meeting of minds" but actually means "agreement to the [same] thing".[1]

The requirement of an objective perspective is important in cases where a party claims that an offer was not accepted and seeks to take advantage of the performance of the other party. Here, we can apply the test of whether a reasonable bystander (a "fly on the wall") would have perceived that the party has impliedly accepted the offer by conduct.

Rules of acceptance

1.It must be an absolute and unqualified acceptance of all the terms of the offer: Sec.7(1). If there is any variation, even on an unimportant point, between the terms of the acceptance, there is no contract.

Communication of acceptance

There are several rules dealing with the communication of acceptance:

  • The acceptance must be communicated.[2][3] Theisger LJ said in Household Fire and Carriage that "an acceptance which remains in the breast of the acceptor without being actually and by legal implication communicated to the offeror, is no binding acceptance".[4] Prior to acceptance, an offer may be withdrawn.
  • As acceptance must be communicated, the offeror cannot include an Acceptance by Silence clause. This was affirmed in Felthouse v Bindley,[5] here an uncle made an offer to buy his nephew's horse, saying that if he didn't hear anything else he would "consider the horse mine". This did not stand up in court, and it was decided there could not be acceptance by silence.
  • An exception exists in the case of unilateral contracts, in which the offeror makes an offer to the world which can be accepted by some act. A classic instance of this is the case of Carlill v Carbolic Smoke Ball Co. [1893] 2 Q.B. 484 in which an offer was made to pay £100 to anyone who having bought the offeror's product and used it in accordance with the instructions nonetheless contracted influenza. The plaintiff who was Mrs Carlill bought the smoke ball and used it according to the instructions but she contracted influenza. She sued the Carbolic Smoke Ball Co. for £100. The court held that the inconvenience she went through by performing the act amounted to acceptance and therefore ordered £100 to be given to Mrs. Carlill. Her actions accepted the offer - there was no need to communicate acceptance. Typical cases of unilateral offers are advertisements of rewards (e.g., for the return of a lost dog).
  • An offer can only be accepted by the offeree, that is, the person to whom the offer is made.
  • An offeree is not usually bound if another person accepts the offer on their behalf without his authorisation, the exceptions to which are found in the law of agency, where an agent may have apparent or ostensible authority, or the usual authority of an agent in the particular market, even if the principal did not realise what the extent of this authority was, and someone on whose behalf an offer has been purportedly accepted may also ratify the contract within a reasonable time, binding both parties: see agent (law).
  • It may be implied from the construction of the contract that the offeror has dispensed with the requirement of communication of acceptance (called waiver of communication - which is generally implied in unilateral contracts).[6]
  • If the offer specifies a method of acceptance (such as by post or fax), acceptance must be by a method that is no less effective from the offeror's point of view than the method specified. The exact method prescribed may have to be used in some cases but probably only where the offeror has used very explicit words such as "by registered post, and by that method only".[7]
  • However, acceptance may be inferred from conduct.[8][9]

Counter-offers and correspondence

The "mirror image rule" states that if you are to accept an offer, you must accept an offer exactly, without modifications; if you change the offer in any way, this is a counter-offer that kills the original offer and the original offer cannot be accepted at a future time.[10]

However, a mere request for information about the terms of the offer is not a counter-offer and leaves the offer intact.[11] It may be possible to draft an enquiry such that it adds to the terms of the contract while keeping the original offer alive.

Under the Uniform Commercial Code (UCC) Sec. 2-207(1), a definite expression of acceptance or a written confirmation of an informal agreement may constitute a valid acceptance even if it states terms additional to or different from the offer or informal agreement. The additional or different terms are treated as proposals for addition into the contract under UCC Sec. 2-207(2). Between merchants, such terms become part of the contract unless:

  • a) the offer expressly limits acceptance to the terms of the offer,
  • b) material alteration of the contract results,
  • c) notification of objection to the additional/different terms are given in a reasonable time after notice of them is received.

Material is defined as anything that may cause undue hardship/surprise, or is a significant element of the contract.

If there is no contract under 2-207(1), then under UCC Sec. 2-207(3), conduct by the parties that recognize there is a contract may be sufficient to establish a contract. The terms for this contract include only those that the parties agree on and the rest via gap fillers.

Acceptance by Assent

The simplest form of offer and acceptance, viz., the offer of a promise and its acceptance by simple assent, is not applicable to the law of contracts except in the single case of contracts under seal. The reason is that in our law no promise, which is not under seal, is binding unless the promisor obtains some benefit in return for his promise, and this benefit is called "consideration." Therefore, if a man says to another, "I will give you $100." or "I will do such and such a thing for you." the other by simply assenting to the proposal without doing something in return for the promise can not create a binding contract. But if A promises B under seal that he will do a certain act or pay a certain sum, when B has assented to the proposal both are bound, and there is a contract. Until B has assented there is an offer, which is irrevocable so far as A is concerned,[12] owing to the particular form in which it was made, though it cannot bind B until he has assented to it. For a man cannot be forced to accept a benefit, though acceptance is sometimes presumed when the thing is clearly for his benefit.

Acceptance by Promise

An offer may be accepted by giving a promise, as where a person offers to pay another a certain sum if he will do something for him on a future day, and the other accepts by promising to do so according to the conditions of the offer. The promise may be either express or implied. It is express where it is proved by what the offeree said; and implied where it is proved that he so acted as to raise an inference that he had made the promise alleged. If a person sends goods to another, and the latter uses the goods, or deals with them as his, he will be liable on an implied promise to pay what the goods are worth, unless he had a right to suppose, and did suppose, that a gift was intended. The acceptance by their use raises an implied promise to pay for them.[13]

Acceptance by Act

Where the offer is made conditional on the offeree doing something, the doing of the thing required completes the agreement.[14]

"If A promises B to pay him a sum of money if he will do a particular act, and B does it, the promise thereupon becomes binding, although B at the time of the promise does not engage to do the act. In the intermediate time the obligation is inert or the promise suspended, and until the performance of the condition there is no consideration and the promise is nudum pactum; but on the performance of the condition by the promisee it is clothed with a valid consideration which relates back to the promise, and it then became obligatory. So if a reward be offered for the apprehension of a culprit or for the doing of any other lawful act, the promise when made is nudum pactum, but when any one relying upon the promised reward performs the condition this is a good consideration for the previous promise and it thereupon becomes binding on the promisor."[15]

Pothier mentions many cases in the Civil law where A promises to do something, if B will do something else. There is nothing binding on B, but when he does the act it becomes binding on A.[16] So

when a person says, "In case you choose to employ this man for a week, I will be responsible for all sums, as he shall receive, during that time and neglect to pay over to you," the party indemnified is not therefore bound to employ him, but if he do employ him, then the guaranty attaches and becomes binding on the party who gave it.[17]

So if

I say, "if you will furnish goods to a third person, I will guarantee the payment," there you are not bound to furnish them, yet if you do furnish them, in pursuance of the contract, you may sue me on my guaranty.[18]

So if a reward be offered for the apprehension of a culprit or for the doing of any other lawful act, the promise when made is nudum pactum; but when any one relying upon the promised reward performs the condition, this is a good consideration for the previous promise, and it thereupon becomes binding on the promisor.

The everyday case of a written order for goods is in point. A man mails an order for certain goods to be sent to him; he receives no reply; the first intimation that the vendor intends to accept the order is the arrival of the goods. If the order is a positive direction to send the goods, it will be enough that the vendor has done so without his having previously notified the vendee of his intention to send them, and to accept the offer. Thus, in Cooper v. Altimus,[19] C wrote to A inquiring if he had staves to sell, and A answered : "If you would let me know how much you would give I could get four thousand at $50 per thousand." C replied: "If they are rift staves and good, I will give $35 per thousand delivered at the station." A sent the staves without answering, but they were rejected by C on the ground that his last letter was an offer which should have been accepted in order to complete the contract. The court held that the letter was an order which did not call for a reply, and became obligatory on him when the staves were tendered in accordance with its terms.

Another apt illustration of the principle is where a university, in its advertisement for 1892-93, announced that applicants for admission to the law department were required to pay $50 for the first year and $40 for each successive year. Plaintiff in 1892 paid $50 and was admitted to the junior class. The catalogue for 1893-94 stated that law students in all classes were required to pay $50 a year. In 1893 plaintiff tendered $40 as the fee for admission to the senior class, which was refused, and he paid the $50 under protest. It was held that he was entitled to recover the $10. The student by entering the junior class and paying the $50 accepted defendant's offer, and no other notice was essential. It was the offer of a promise for an act. No one was obliged to accept defendant's offer; but anyone was entitled by its very terms to do so, and plaintiff having done so the contract was complete and binding on defendant. Plaintiff was not under any obligation to take the second year's course, but defendant had not required any promise from him of this kind. Defendant's offer might have said that any person entering the junior class and agreeing to take the whole course would be entitled to the stated terms, and in such a case this would have been an offer of a promise for a promise, and if no promise had been made before the withdrawal of the offer there would be no contract. But defendant chose to make its promise in consideration of plaintiff's doing something, i.e., entering the junior class and paying $50.[20]

Acceptance by Silence

Acceptance by Signing Paper

Acceptance by Accepting Paper

Acceptance--by Whom

Acceptance Must be Absolute and Unconditional

Acceptance Must be Identical to Offer

Communication of Acceptance

Postal Rule

Main Article: Mailbox rule

As a rule of convenience, if the offer is accepted by post, the contract comes into existence at the moment that the acceptance was posted.[21] This rule only applies when, impliedly or explicitly, the parties have post in contemplation as a means of acceptance.[22] It excludes contracts involving land, letters incorrectly addressed and instantaneous modes of communication. The relevance of this early 19th century rule to modern conditions, when many quicker means of communication are available has been questioned, but the rule remains good law for the time being.

Subject of Acceptance by Agent Reviewed

Acceptance Makes Irrevocable Contract

Revocation of Acceptance

Time and Place

Battle of the forms

Often when two companies deal with each other in the course of business, they will use standard form contracts. Often these standard forms contain terms which conflict (e.g. both parties include a liability waiver in their form). The 'battle of the forms' refers to the resulting legal dispute arising where both parties accept that a legally binding contract exists, but disagree about whose standard terms apply. Such disputes may be resolved by reference to the 'last document rule', i.e. whichever business sent the last document, or 'fired the last shot' (often the seller's delivery note) is held to have issued the final offer and the buyer's organization is held to have accepted the offer by signing the delivery note or simply accepting and using the delivered goods.

In U.S. law, this principle is referred to as the last shot rule.

  1. R. Austen-Baker, "Gilmore and the Strange Case of the Failure of Contract to Die After All" (2000) 18 Journal of Contract Law 1.
  2. Powell v Lee (1908) 99 L.T. 284
  3. Robophone Facilities Ltd v. Blank [1966] 3 All E.R. 128.
  4. Household Fire and Carriage, (1879) 4 Exch Div 216
  5. Template:Cite BAILII.
  6. Re Selectmove Ltd [1994] BCC 349.
  7. Yates Building Co. Ltd v. R.J. Pulleyn & Sons (York) Ltd, (1975) 119 Sol. Jo. 370.
  8. Brogden v. Metropolitan Railway Company (1877) 2 App. Cas. 666
  9. Rust v. Abbey Life Assurance Co. Ltd
  10. Hyde v. Wrench (1840) 3 Beav 334.
  11. Stevenson v. McLean (1880) 5 QBD 346.
  12. O'Brien v. Boland, 166 Mass. 48l, 44 N. E. Rep. 602; McMillan v. Ames, 33 Minn. 257; Williams v. Forbes, 114 Ill. 167, 28 N. E. 463.
  13. See Implied Contracts
  14. Dick v. Fuller, 213 Fed. 98.
  15. Tram v. Gould, 5 Pick. 30.
  16. See Fishmongers Co. v . Robertson, 5 M. & G. 171.
  17. Kennaway v . Treleavan, 5 M. & W. 498.
  18. Morton v. Burn, 7 Ad. & Ell. 23.
  19. 62 Pa. St. 486.
  20. Niedermeyer v. Curators, 61 Mo. App. 654.
  21. Adams v Lindsell (1818) 106 ER 250
  22. Henthorn v Fraser [1892] 2 Ch 27.