Editing Contracts/Offer

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'''Offer''' and '''[[Contracts/Acceptance|acceptance]]''' analysis is a traditional approach in [[contract law]]. The offer and acceptance formula, developed in the 19th century, identifies a moment of formation when the parties are [[mirror image rule|of one mind]]. This classical approach to contract formation has been modified by developments in the law of [[estoppel]], misleading conduct, [[misrepresentation]], [[unjust enrichment]], and [[power of acceptance]].
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Treitel defines an offer as "an expression of willingness to contract on certain terms, made with the intention that it shall become binding as soon as it is accepted by the person to whom it is addressed", the "offeree".<ref>{{cite book |author=Treitel, GH |author-link2=Guenter Treitel |title=The Law of Contract |edition=10th |page=8}}</ref> An offer is a statement of the terms on which the offeror is willing to be bound.  It is the present contractual intent to be bound by a contract with definite and certain terms communicated to the offeree.

The expression of an offer may be take different forms and which form is acceptable varies by jurisdiction. Offers may be presented in a letter, newspaper advertisement, fax, email verbally or even conduct, as long as it communicates the basis on which the offeror is prepared to contract.

Whether the two parties have reached agreement on the terms or whether a valid offer has been made is an issue which is determined by the applicable law. In certain jurisdictions,  courts use criteria known as 'the objective test' which was explained in the leading English case of ''[[Smith v. Hughes]]''.<ref>''[[Smith v. Hughes]]'' (1871) LR 6 QB 597</ref><ref name=Ermogenous>{{cite AustLII |litigants=[[Ermogenous v Greek Orthodox Community of SA Inc]] |year=2002 |court=HCA |num=8 |parallelcite=(2002) 209 [[Commonwealth Law Reports|CLR]] 95}}.</ref> In Smith v. Hughes, the court emphasised that the important thing in determining whether there has been a valid offer is not the party's own (subjective) intentions, but how a reasonable person would view the situation. The objective test is largely superseded in the UK since the introduction of the [[Brussels Regime]] in combination with the [[Rome I Regulation]]. 

==Certainty of Offer==
{{Main article|Contracts/Uncertainty{{!}}Uncertainty}}

An offer can only be the basis of a binding contract if it contains the key terms of the contract. For example, as a minimum requirement for sale of goods contracts, a valid offer must include at least the following 4 terms: Delivery date, price, terms of payment that includes the date of payment and detail description of the item on offer including a fair description of the condition or type of service. Unless the minimum requirements are met, an offer of sale is not classified by the courts as a legal offer but is instead seen as an advertisement. 

==Communication of Offer==
Whether the offer be by (a) acts or by (b) words it is essential that the offer be communicated.<ref>[[Contracts/Intention to Bind#Intention Must Be Communicated|Intention Must Be Communicated]]</ref>

'''(a)''' If A does work for B without B's request or knowledge, B can not be held liable to pay for it, because here it is clear that A has not communicated his offer to do the work to B and a man ought not to be forced to pay for what he has no opportunity to reject.<ref>[[Boston v. Dist. of Columbia]], 19 Ct. of Cl. 31; [[Seals v. Edmonson]], 73 Ala. 295, 49 Am. Rep. 51; [[Chadwick v. Knox]], 31 N. H. 226. 44 A. M. Dec. 329; [[Mumford v. Brown]], 6 Cow. 475, 16 Am. Dec. 440.</ref> In ''[[Bartholomew v. Jackson]]'',<ref>20 Johns, 28, 11 Am. Dec. 237.</ref> a farmer, seeing his neighbor's stack of wheat in danger of fire, took upon h imself to remove it to a safe place, and then sued for his services. But it was ruled that as the offer to remove the stack was never communicated to the defendant there was no contract on which he could be held. In ''[[Taylor v. Laird]]'',<ref>25 L. J . Ex. 329.</ref> plaintiff, who had been engaged to command defendant's ship, threw up his command in the course of the expedition but helped to work the vessel home, and then claimed reward for services thus rendered. It was held that he could not recover. Evidence of a recognition or acceptance of services may be sufficient to show an implied contract to pay for them, ''if at the time defendant had power to accept or refuse the services''. But in this case defendant never had the option of accepting or refusing the services while they were being rendered, and did in fact repudiate them when he became aware of them. Plaintiff 's offer, being uncommunicated, did not admit of acceptance, and could give him no rights against the party to whom it was addressed.

'''(b)''' If A promises to do something if B will do something and B does the act in ignorance of the offer, he can not claim performance of the promise, for the offer was not communicated to him when he accepted it by doing the act.<ref>[[Ball v. Newton]], 7 Cush. 599.</ref> In ''[[Fitch v. Snedeker]]'',<ref>38 N. Y. 242.</ref> defendant had published a notice offering a reward of $200 to any person who would give information leading to the apprehension and conviction of the person or persons guilty of the murder of a certain female. Through the efforts of plaintiff one F was arrested and convicted, but it appeared that he had done so not knowing of the reward or before it was offered. The court held that there was no agreement.

{{Quote|To the existence of a contract there must be mutual assent or in another form offer and consent to the offer. The motive inducing consent may be immaterial, but the consent is vital. How can there be consent or assent to that of which the party has never heard?"<ref>See In accord with this case: [[Williams v. West Chicago St. R. Co.]], 191 Ill. 610, 61 N. E. Rep. 456, 85 Am. St. Rep. 278; [[Stamper v. Temple]], 6 Humph. 113, 44 Am. Dec. 296; [[Hewitt v. Anderson]], 56 Cal. 476, 38 Am. Rep. 65. There are opinions to the contrary. Some or these admit that they are contrary to principle, but think that it is in furtherance of public policy to allow rewards for the recovery of property or the apprehension of a criminal, to be recoverable where the plaintiff did not know of it at the time of rendering the service. Others are based on the old English case of [[Williams v. Carwardine]], 4 B. & Ad. 621, which they misunderstand. Here the plaintiff gave information as to a murder "believing that she had not long to live, and to ease her conscience." Afterwards, she recovered and sued for the reward, and was held entitled to recover. It was not objected to the recovery that she did not know of the offer when she gave the information (for the report is silent as to her knowledge of it), but that the reward was not the motive for her act. The court held simply that the motive was immaterial. [[Eagle v. Smith]], 4 Houst. 293; [[Dawkins v. Sappington]], 26 Ind. 199; [[Auditor v. Ballard]], 9 Bush 572. 15 Am. Rep. 728; [[Russell v. Stewart]], 44 Vt. 170. In a New York case motive was considered material, the court saying: "It is a contract obligation. This being so, it must be the voluntary giving up of the information by the person. If corkscrewed out of him by threats, inducing fear or prosecution, no recovery could be had. That would destroy the contract element." [[Vitty v. Ely]], 51 N. Y. 44.</ref>}}


==Preliminary talks==
According to the Restatement (Second) of Contracts § 26, (1981), <span style="background:yellow">Preliminary negotiations are not considered offers</span>. Examples of preliminary negotiations include 
# invitations to bid,  
# price quotations, &  
# proposals.

==Offer May Prescribe Time, Place, and Condition of Acceptance==
The offeror has the right to prescribe the time,<ref>The offer may require that it be accepted within a certain time, in which case an acceptance after that time will be of no effect. [[Longworth v. Mitchell]], 26 Ohio St. 342; [[Potts v. Whitehead]], 20 N. J. (Eq.) 55; [[Britton v. Phillipp]], 24 How. Pr. 111; [[Union Nat. Bk. v. Mills]], 106 N. C. 347, 11 S. E. 321; [[Horne v. Niver]], 168 Mass. 4, 46 N. E. 393. An offer by letter may be made conditional upon an acceptance being sent by return mail and the offer must then be accepted within that interval. [[Maclay v. Harvey]], 90 Ill. 525, 32 Am. Rep. 35; [[Carr v. Duval]], 14 Pet. 77; [[Dunlop v. Higgins]], 1 H. L. Cas. 381. The words "by return mail" have been held to give a reasonable time for acceptance, and an answer mailed on the same day the offer was received, though not by the first mail leaving the city after it was received, has been considered sufficient. [[Palmer v. Phoenix Ins. Co.]], 84 N. Y. 63; [[Taylor v. Rennie]], 35 Barb. 272. But a delay of three or four days is different. [[Maclay v. Harvey]], supra; [[Taylor v. Rennie]], 35 Barb. 272. An offer requiring acceptance "by return mail" might be accepted by telegram or messenger reaching the offeror as early as the reply would have reached him if sent by return mail, for the words used in the offer would be construed as fixing the time for acceptance and not the manner or accepting. [[Tinn v. Hoffman]], 29 L. T. Rep. N. S. 271; [[Bernard v. Torrance]], 5 G. & J. 383; [[Taylor v. Rennie]], 1l5 Darb. 272; [[Minnesota, etc., R. Co. v. Columbus R. Mill Co.]], 119 U. S. 149, 7 Sc. T. 168</ref> place,<ref>In [[Eliason v. Henshaw]], 4 Wheat. 225, E. & Co. offered to buy flour of H., the answer to be sent by the wagon which carried the offer. H. sent a letter of acceptance by mall to another place which was not the destination of the wagon, having reason to believe that his answer would in this way reach E. & G. Co. more speedily. The Supreme Court of the United States decided that E. & Co. were not bound by the acceptance, as they had a right to dictate the terms on which they would purchase, and of the importance of which they were the sole judges.</ref> form or other condition of acceptance,<ref>[[Wilcox v. Cline]], 70 Mich. 617, 38 N. W. Rep. 666; [[Perry v. Mt. Hope Iron Co.]], 15 R. I. 380, 5 Atl. Rep. 632, 2 Am. St. Rep. 902. An offer which requires that it shall be accepted in writing cannot be accepted verbally. [[Briggs v. Sizer]], 30 N. Y. 647; [[Bosshardt, etc. Co. v. Crescent Oil Co.]], 171 Pa. St. 109, 32 Atl. Rep. 1120. A person making a proposal may make it a condition that the contract be reduced to writing and signed by both parties, and in such case there is no contract until the written contract is drawn up and signed. [[The Governor v. Betch]], 28 Eng. L. & Eq. 470; [[McDonald v. Bewick]], 61 Mich. 79; [[Bourne v. Shapleigh]], 9 Mo. (App.) 64; [[Spinney v. Donnerig]], 108 Cal. 666. 41 Pac. 797; [[Sanders v. Pottlitzer Bros.]], 144 N. Y. 209, 39 N. E. 76.</ref> in which case the offer can be accepted only in the way prescribed by the offer.

==Offer by Post, Telegraph, or Telephone==

===Offer Made by Post===
{{Main article|Contracts/Mailbox rule{{!}}Mailbox rule}}
As a rule of convenience, if the offer is made by post, the contract comes into existence at the moment that the acceptance was posted.<ref>[[Adams v Lindsell]] (1818) 106 ER 250</ref> This rule only applies when, impliedly or explicitly, the parties have post in contemplation as a means of acceptance.<ref>[[Henthorn v Fraser]] [http://www.austlii.edu.au/cgi-bin/LawCite?cit=1892%202%20Ch%2027 &#91;1892&#93; 2 Ch 27].</ref> 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.

== Unilateral contract ==

A [[unilateral contract]] is created when someone offers to do something "in return for" the performance of the act stipulated in the offer.<ref name=Woollen>{{cite AustLII |litigants=[[Australian Woollen Mills Pty Ltd v The Commonwealth]] |year=1954 |court=HCA |num=20 |parallelcite=(1954) 92 [[Commonwealth Law Reports|CLR]] 424}}.</ref> In this regard, acceptance does not have to be communicated and can be accepted through conduct by performing the act.<ref name=Carbolic>{{Cite BAILII |litigants=[[Carlill v Carbolic Smoke Ball Company]] |year=1892 |court=EWCA |num=1 |parallelcite=[1893] 1 QB 256}}.</ref> Nonetheless, the person performing the act must do it in reliance on the offer.<ref name="R v Clarke">{{cite AustLII |litigants=[[R v Clarke]] |year=1927 |court=HCA |num=47 |parallelcite=(1927) 40 [[Commonwealth Law Reports|CLR]] 227}}.</ref>

A unilateral contract can be contrasted with a [[bilateral contract]], where there is an exchange of promises between two parties. For example, when (A) promises to sell her car and (B) promises to buy the car.

The formation of a unilateral contract can be demonstrated in the English case ''[[Carlill v Carbolic Smoke Ball Co]]''.<ref name=Carbolic/> In order to guarantee the effectiveness of the Smoke Ball remedy, the company offered a reward of 100 pounds to anyone who used the remedy and contracted the flu. Once aware of the offer, Carlill accepted the offer when she purchased the Smoke Ball remedy and completed the prescribed course. Upon contracting the flu, she became eligible for the reward. Therefore, the company's offer to pay 100 pounds "in return for" the use of the Smoke Ball remedy and guarantee not to contract the flu was performed by Carlill.

==Rejection of an offer or lapse of time==
Since an offer may be turned into a contract by acceptance, it is important to know how this liability may be terminated. And the modes in which an offer may lapse or be determined before acceptance are: '''(a)''' by revocation, '''(b)''' by rejection, '''(c)''' by efflux of time, '''(d)''' by breach of condition, '''(e)''' by death, '''(f)''' by change of circumstances.

===Revocation of offer===
An offeror may revoke an offer before it has been accepted, but the revocation must be communicated to the offeree (although not necessarily by the offeror,<ref>[[Dickinson v. Dodds]] (1876) 2 Ch.D. 463; [[Bennett v. Potter]], 16 Cal. App, 183, 116, p. 681; [[Prior v. Hilton Co.]], 141 Ga. 117, 80 S. E. 559</ref>). If the offer was made to the entire world, such as in Carlill's case,<ref name=Carbolic/> the revocation must take a form that is similar to the offer. However, an offer may not be revoked if it has been encapsulated in an [[option (law)|option]] (see also option contract), or if it is a "[[Contracts/Firm offer|firm offer]]" in which case it is irrevocable for the period specified by the offeror.

If the offer is one that leads to a unilateral contract, the offer generally cannot be revoked once the offeree has begun performance.

At an auction sale the bid is not binding until assented to, which assent is signified on the part of the seller by knocking down the hammer. Therefore a bid may be withdrawn at any time before the
hammer goes down.<ref>[[Payne v. Cave]], 3 Term. Rep. 148; [[Ives v. Tregent]], 29 Mich. 390; [[Fisher v. Seltzer]], 23 Pa. Rt. 308.</ref>

A party may revoke his offer even if the offer gives a definite time for acceptance, for the agreement to keep the offer open is without consideration.<ref>9 Cyc. 285, 13 C.J. 295; [[Minneapolis, etc., R. Co. v. Mill Co.]], 119 U.S. 149, 151</ref> But where the agreement is itself founded on a valuable consideration--as where in consideration of a certain sum of money an option to purchase is given to another for a certain time--the offer cannot be retracted during that time. This has been criticized on the ground that there can be no meeting of the minds of the parties after the offer has been withdrawn and the retraction communicated to the other party, and there can be no contract of sale in such a case, though the retraction would be a breach of the contract to leave the offer open and the measure of damages would be the same.<ref>Tiedeman, Sales, § 41.</ref> But the proper rule would seem to be that an offer of this kind should be treated as a conditional covenant to convey and subject on the performance of the condition within the time limited, to specific performance.<ref>[[Zimmerman v. Brown]], 36 Atl. 676; [[Hayes v. O'Brien]], 149 Ill. 403, 37 N.E. Rep. 73; [[Mansfield v. Hodge]], 147 Mass. 304.</ref>

An offer under seal cannot be revoked, at common law. Even though it is not communicated to the offeree it remains open for acceptance when the oferee becomes aware of its existence. This results from the common law rule that a grant under seal is binding on the grantor and those who claim under him, although it has never been communicated to the grantee, if it has been duly delivered; and any obligation created by deed is on the same footing. The promisor is bound, but the promisee need not take advantage of the promise unless he chooses.<ref>Cyc. 288, 289, 13 C.J. 295; [[Xenos v. Wickam]], L.R., 2 H.L. 296; [[Kershaw v. Kershaw]], 102 Ill, 307; [[Wing v. Chase]], 35 Me. 260; [[Wlllard v. Tayloe]], 8 Wall, 557</ref> The rule that where an offer is made under seal it cannot be revoked applies to options given under seal<ref>[[McMillan v. Ames]], 33 Minn. 257, 22 N.W. Rep. 612; [[O'Brien v. Boland]], 166 Mass. 481, 44 N.E. Rep, 602; [[Thomason v. Bescher]], 176 N.C. 622, 97 S.E. Rep. 654; and see 1 A.L.R. Am. 631.</ref>

The revocation of the offer must be communicated to the person to whom the offer was made before or at the time of his communicating the acceptance.<ref>9 Cyc. 288, 13 C. J. 295. Where the offer is made by mail, a second letter sent by the same post and delivered at the same time with the first letter ([[Sherman v. National Cash-Register Co.]], 5 Colo. App. 162, 38 Pac. 392; [[Dunsmore v. Alexander]], 9 Shaw D.&B. 190), or a letter or telegram received by the offeree before he has posted his acceptance would be sufficient. ([[Re London, etc., Bank]], 81 L.T. Rep. N.S. 512.)
<br /><br />
The case of [[Cooke v. Oxley]], 3 T. R. 653, 1 Rev. Rep, 783, has been often criticized. In this case the declaration was that the defendant proposed to sell and deliver a certain number of hogsheads of tobacco to the plaintiff at a certain price, whereupon the plaintiff desired the defendant to give him time to agree to or dissent from the proposal till the hour of four in the afternoon of that day, to which the defendant agreed, and thereupon promised the plaintiff to sell and deliver the tobacco upon the terms aforesaid, if the plaintiff would agree to purchase the same and give notice to the defendant before four in the afternoon of that day. The plaintiff then averred that he agreed to purchase the tobacco and give notice thereof to the defendant before the hour of four arrived, and offered to pay the price, but that the defendant refused to comply with his promise. A verdict having been rendered for the plaintiff, the judgment was arrested. Some American judges, construing the decision to be that where an offer gives a specified time for acceptance, an acceptance within that time does not make a binding agreement, have ruled, citing it as authority, that notice of the revocation of an offer is not necessary. See [[Bean v. Burbank]], 16 Me. 458, 33 Am. Dec. 681; [[Tucker v. Woods]], 12 Johns, (N.Y.) 190, 7 Am. Dec. 305; [[Gillespie v. Edmonston]], 11 Humph. (Tenn.) 553. But the decision turned on a point of pleading. The contract declared on that the defendant would give the plaintiff until four in the afternoon to decide, was clearly not a binding contract at all, and the declaration did not show with sufficient distinctness that the defendant had not withdrawn the offer before the plaintiff notified him of the acceptance. The case is explained In a later English case where the court says in substance: All that [[Cooke v. Oxley]], 3 T.R. 653. 1 Rev. Rep. 783, affirms is that a party who gives time to another to accept or reject a proposal is not bound to wait till the time expires. The offer may be revoked before acceptance. If the offer is not retracted, it is in force as a continuing offer until the time for accepting or rejecting it has arrived. [[Stevenson v. McLean]], 5 Q.B.D. 346. And in [[Boston, etc., R. Co. v. Bartlett]], 3 Cush. 224, 228, Fletcher, J. says:
{{Quote|The case of [[Cooke v. Oxley]], 3 T.R. 653, 1 Rev. Rep. 783, . . . has been supposed to be inaccurately reported; and that in fact there was in that case no acceptance. But, however, that may be, if the case has not been directly overruled, it has certainly in later cases been entirely disregarded, and can not now be considered as of any authority.}}</ref>

Where the negotiations are by mail, the offer is presumed to have been renewed during every moment of the time limited, and upon this presumption the acceptor has the right to rely and conclude the contract by acceptance at any time before receiving notice of a withdrawal.<ref>[[Larmon v. Jordan]], 56 Ill. 204; [[Moore v. Pierson]], 6 Iowa 278; [[Hamilton v. Lycoming Ins. Co.]], 5 Pa. St. 339.</ref> Therefore, a revocation of the offer which is not notified to the person to whom the offer has been made, or which is brought to his knowledge after he has communicated his acceptance of the offer, is altogether inoperative; as in the case of a letter of revocation not delivered until after the offer contained in a former letter has been accepted by posting the letter of acceptance, although it may have been posted before the acceptance of the offer was mailed.<ref>9 Cyc. 288, 13 C.J. 295; Kempner v. Cohn, 47 Ark. 519; [[Moore v. Pierson]], 6 Iowa 279, 71 Am. Dec. 409; [[Wheat v. Cross]], 31 Md. 99, 1 Am. Rep. 28; [[Contracts/Mailbox rule|Mailbox rule]]</ref>

In ''[[Bryne v. Van. Tienhoven]]''<ref>C.P.D. 344.</ref> defendant, writing from C on October 1st, made an offer to plaintiff asking for a reply by cable. Plaintiff received the offer on the 11th, and at once accepted in the manner requested. On the 8th defendant had posted a letter revoking his offer. It was held that an acceptance made by post is not affected by the fact that a letter of revocation is on its way.

{{Quote|If the defendant's contention were to prevail, no person who had received an offer by post and had accepted it, would know his position until he had waited such time as to be quite sure that a letter withdrawing the offer had not been posted before his acceptance of it. It appears to me that both legal principle and practical convenience require that a person who has accepted an offer not known to him to have been revoked, shall be in a position safely to act upon the footing that the offer and acceptance constitute a contract binding on both parties.}}

A formal notice is not, however, necessary to constitute a comununicated revocation. It is sufficient that the person making the offer does some act inconsistent with it and making performance on his part impossible, as, for example, selling the property in question to another purchaser, and that the person to whom the offer was made has knowledge of such act.<ref>[[Kempner v. Cohn]], 47 Ark. 519, 1 S. W. Rep. 869, 58 Am. Rep. 775; [[Coleman v. Applegarth]], 68 Md. 21, 11 Atl. Rep. 284, 6 Am. St. Rep. 417; [[Wheat v. Cross]], 31 Md. 99, 1 Am. Rep. 28; [[Peck v. Freeze]], 101 Mich. 321, 59 N.W.R. 600; [[Dickinson v. Dodds]], 2 Ch. D. 463; [[Craig v. Harper]], 3 Cush. 158.</ref>

{{Quote|It is usually said that an offer does not bind the offeror and this is true in the sense that he may withdraw the offer by taking timely and proper steps. But it is not true that it places no responsibility upon him. Everyone is responsible for his actions and if he makes an offer he must take the consequences. No matter what diligence he may use in striving to recall such offer it will not avail unless he actually succeeds in doing what the law requires for a revocation. If after such endeavor he fails, the offer which thus continues may be accepted and a contract arise in spite of the offeror's efforts. Thus if one makes an offer to another designating one year as the time it shall continue and such offeree goes to the wilds of Africa, it may well happen that the offeror may be unable to communicate a change of mind and a contract arise in spite of attempts to make known such change of intention.<ref>Ashley, Contr. § 20.</ref>}}

A general offer to the public may be revoked without actual notice to the party who may afterwards accept it without knowing of its revocation or withdrawal, if the revocation be made in the same way as the offer was made.<ref>[[Shuey v. United States]], 92 U.S. 73.</ref> In ''[[Shuey v. United States]]''<ref>Supra.</ref> the government by a published proclamation had offered a reward for information which would lead to the arrest of a certain criminal. It was afterwards withdrawn by the same kind of notice. S afterrwards, and not knowing of the revocation, gave the information. But it was held that there was no agreement to pay the reward.

{{Quote|There was no contract until its terms were complied with. Like any other offer of a contract, it might therefore be withdrawn before rights had accrued under it. . . . True it is found that then, and at all times until the arrest was actually made, he was ignorant of the withdrawal; but that is an immaterial fact. The offer of the reward not having been made to him directly, but by means of a published proclamation, he should have known that it could be revoked in the manner in which it was made.}}

For the same reason, offers contained in time tables published by railroads may be withdrawn by notice to that effect given in such subsequent publications.<ref>[[Sears v. R. Co.]], 14 Allen 433, 92 Am. Dec. 780; [[Thayer v. Burchard]], 99 Mass. 508.</ref>

But the revocation must be in good faith. Thus where the defendant offered a share of his profits to any employe who should have been in his service 4500 hours during 100 consecutive days and should not be discharged during the year and the plaintiff worked all the year until Decemher 30, when he was dismissed by the defendant, it was held that he was entitled to recover his share of the profits for that year.<ref>[[Zwolaneck v. Baker Co.]], 150 Wis. 517.</ref>

===Rejection or Conditional Acceptance===
If the offer made is rejected, the party making it is relieved from liability on that offer and one who has rejected it cannot afterwards convert the same offer into an agreement by acceptance; to do so he must. have the renewed consent of the person who made the offer.<ref>[[James v. Darby]], 100 Fed. Rep. 228, 229, 40 C.C.A. 341; [[Sheffield Canal Co. v. R.R. Co.]], 3 Rail & Canal Cas. 132; [[Davis v. Parrish]], Litt. Sel. Cas. 153, 12 Am. Dec. 287.</ref> A conditional acceptance or an acceptance not in accordance with the terms of the offer has the same effect; it is a counter-proposal and a virtual rejection of the original offer.<ref>[[Gallagher v. Gas Light Co.]], 141 Cal. 699, 75 Pac. 329; ''[[Wittner v. Hurwitz]]'', 216 N.Y. 259, 110 N.E. 433; ''[[Poel v. Brunswick Co.]]'', 216 N.Y. 310, 110 N.E. 619; ''[[McRae v. Ross]]'', 170 Cal. 74, 148 Pac. 216.</ref> Therefore a subsequent acceptance of the original proposal operates only as a new counter-proposal which the original proposer may either accept or reject.<ref>9 Cyc. 290, 13 C.J. 296; [[Carr v. Duval]], 14 Pet. 77; [[Minn., etc., R. Co. v. Mill Co.]], 119 U.S. 147; [[Jenness v. Mt. Hope Iron Co.]], 53 Me. 20; [[Northwestern Iron Co. v. Meade]], 21 Wis. 474, 94 Am. Dec. 557; [[Clay v. Ricketts]], 66 Ia. 362, 23 N.W. Rep. 755.</ref> In ''[[Hyde v Wrench]]''<ref>3 Beav. 334.</ref> A proposed to sell a farm to B for £1,000; B said he would give £950. A refused this offer, and then B said that he was willing to give £1,000. A was no longer ready to adhere to his original proposal and B endeavored to obtain specific performance of the alleged contract. But it was held that his offer to buy at £950 in answer to A's offer to sell for £1,000 was a refusal of the offer of A and a counter-proposal, and that he could not after this, without A's consent, hold him to his original offer.

To constitute a rejection of the offer there must be a distinct counter-proposition.<ref>"It Is believed that this position is sound. . . . Singularly enough, there appears to be no decision involving the point and the various textbooks do not refer to it." Ashley, Contr. § 18.</ref> A mere inquiry whether the offeror would change his terms will not be a rejection of the original offer so as to prevent a subsequent acceptance of it.<ref>[[Stevenson v. McLean]], 5 Q.B.D. 346; [[Portage Rubber Co. v. Fruin]], 186 Ill. App. 11. Or expressions of hope or suggestions or requests. Id.</ref> Nor will an inquiry as to how remittance shall be made,<ref>[[Clark v. Dales]], 20 Barb. 42.</ref> or a suggestion that the business shall be transacted through a bank instead of a person.<ref>[[Brisban v. Boyd]], 4 Paige (N.Y.) 17, and see [[Stotesbury v. Massengale]], 13 Mo. (App.) 221; [[Brown v. Cairns]], 63 Kan. 393, 66 Pac. Rep, 1033</ref> An immaterial condition does not constitute a rejection,<ref>9 Cyc. 291, 13 C. J, 297; [[Bonnerve v. Jenkins]], 8 Ch. D. 70. In this case the agent of an intending purchaser having made an offer for the property received in reply a letter from the vendor's agent accepting the offer and fixing a time for signing the contract. The purchaser's agent not appearing at the time named, the vendor refused to complete. But it was held that this was no defense. The naming of the time did not make the acceptance a conditional one. So if the letter shows a complete contract, it will take effect in spite of a statement in the acceptance that a formal contract will be drawn up. [[Green v. Cole]], 103 Mo. 76; [[Bonnerve v. Jenkins]], L.R. 8 Ch. D. 70; [[Blaney v. Hope]], 14 Ohio St. 292; [[Mackey v. Mackey]], 29 Gratt. 158; [[Bell v. Offut]], 10 Bush. 632; [[Allen v. Chouteau]], 102 Mo. 309. When land is offered for sale by letter, acceptance specifying that payment is to be made at the place of the purchaser's residence is not unconditional, the terms of the offer entitle the vendor to payment at his own place of residence. [[Baker v. Holt]], 56 Wis. 100; [[Sawyer v. Brossart]], 67 Iowa 678; [[Northwestern Iron Co. v. Meade]], 21 Wis. 474; [[Gilbert v. Baxter]], 32 N.W. Rep. (Ia.) 364: [[Maynard v. Tabor]], 53 Me. 511; [[Fenno v. Weston]], 31 Vt. 345; [[Siebold v. Davis]], 67 Ia. 660; [[Langellier v. Schaefer]], 36 Minn. 361, 31 N.W. Rep, 690.</ref> nor a condition which the law implies.<ref>As a condition in response to an appllcatlon for a loan that the acceptor will make the loan when his attorney advises him that the title is good. [[Morse v. Tillitson Co.]], 253 Fed. Rep. 340, and see 1 A.L.R. Am. 1508.</ref>

===Lapse of Time===
Upon making an offer, an offeror may include the period in which the offer will be available. If the offeror has prescribed the time within which it is to be in force, on the expiration of that time it comes to an end without any further act or notice on the part of the offeror.<ref>19 Cyc. 291, 13 C. J. 297; [[Longworth v. Mitchell]], 26 Ohio St. 334; [[Potts v. Whitehead]], 20 N.J. Eq. 55, 59; [[Maclay v. Harvey]], 90 Ill. 525, 32 Am. Rep. 35; [[Ackerman v. Maddox]], 26 N. D. 50, 143 N. W. 147; [[Richardson v. Harding]], 106 U.S. 252, 1 Sc. T. 213.</ref>

If no time is fixed within which the offer is to be accepted, it will lapse after the expiration of a reasonable time.<ref>9 Cyc. 291, 13 C.J. 297. Offer to sell real estate; delay of five days in accepting not unreasonable. [[Kempner v. Cohn]], 47 Ark. 519; delay of two weeks unreasonable. [[Ortman v. Weaver]], 11 Fed. 358. Delay of six days in offer to sell manufactured goods unreasonable. [[Hargadine v. Reynolds]], 64 Fed. 560.</ref> The person who makes the offer is presumed to act in view of existing circumstances, and the person to whom it is addressed ought not to lie by until these have changed. The oferee must therefore decide forthwith; otherwise an offer might be accepted after the lapse of months or years, and when the state of things was no longer the same. 

What is a reasonable time will depend on the nature of the offer and the surrounding circumstances.<ref>9 Cyc. 292; [[Averlll v. Hedge]], 12 Conn. 424; [[Morse v. Bellows]], 7 N.H. 549, 28 Am. Dec. 752; [[Crabtree v. St. Paul Opera House Co.]], 39 Fed. 746; [[Minnesota Linseed Oil Co. v. Collier White Lead Co.]], 4 Dill. 431; [[Ramsgate Hotel Co. v. Montefiore]], L.R., 1 Exch. 109.</ref> An offer to buy or sell land would not require so prompt an acceptance as an offer to buy or sell chattels, corporate stock, etc., of a perishable character or of fluctuating value<ref>[[Kempner v. Cohn]], 47 Ark. 519, 1 S.W. Rep. 869, 48 Am. Rep. 775; [[Hill v. Mathews]], 78 Mich. 377, 44 N.W. Rep. 286.</ref> So if an article is offered for sale today at a certain price, and the buyer does not agree and goes away, a larger sum may be asked tomorrow when he returns prepared to buy.<ref>[[Johnson v. Fessler]], 7 Watts, 48, 32 Am. Dec. 738.</ref> 

An offer to sell goods through the mail must be accepted by a post (not necessarily the first) which leaves during business hours of the day after it is received.<ref>[[Maclay v. Harvey]], 90 Ill. 525, 32 Am. Rep. 38; [[Bernard v. Torrance]], 5 Gill & J. 383; [[Eagle Mill Co. v. Caven]], 76 Mo. App, 468; [[Batterman v. Morford]], 76 N. Y. 622; [[Ortman v. Weaver]], 11 Fed. 358; [[Dunlop v. Higgins]], 1 H.L. Cas. 381, 12 Jur. 295.</ref> The use of the telegraph to make the offer implies a still shorter limitation of time, and hence it has been held that an offer made by wire on one day could not be accepted by letter nor by a telegram the next day.<ref>[[Quenerduaine v. Cole]], 32 Wkly. Rep. 185; [[James v. Marion Fruit Jar & Bottle Co.]], 69 Mo. App. 207.</ref>

The rule is the same where the offer is for an act and not for a promise.<ref>[[Ramsgate Hotel Co. v. Montefiore]], L.R. Ex. 101; [[Loring v. Boston]], 7 Mete. 407.</ref> A reward for the arrest of a criminal ''ipso facto'' expired after a reasonable time, although never actually withdrawn, and one who had arrested a criminal three years after its publication is not entitled to avail himself of the offer.<ref>[[Loring v. Boston]], supra. Ten years was held not too long ([[Drummond v. U.S.]], 35 Ct. Cl. 236), and twelve years too long ([[Mitchell v. Abbott]], 25 Me. 338). to accept a published offer of a reward. In Connecticut it is held that an offer of a reward for a particular crime does not lapse until the statute of limitations bars the conviction. [[Re Kelly]], 39 Conn. 159.</ref>

An offer may have expired by a reasonable time having elapsed, yet if the offeree, in good faith, makes known his acceptance within any period which he could have fairly believed to be reasonable, good faith, it is said, requires the offeror, if he intends to set up the delay, to make known that intention promptly; otherwise he may be regarded as having assented to the offer made ''de novo'' in the late acceptance.<ref>[[Phillips v. Moore]], 71 Me. 78.</ref>

===Death or Insanity===
The death<ref>9 Cyc. 293, 13 C. J. 298; [[Holfenstein's Estate]], 77 Pa. St. 328, 18 Am. Rep. 449; [[Wallace v. Townsend]], 43 Ohio St. 637, 64 Am. Rep. 829; [[Frith v. Lawrence]], 1 Paige 434; [[Twenty-third Street Baptist Church v. Cornell]], 117 N.Y. 601, 23 N.E. Rep. 177, 28 N.Y. St. 482; [[Mactier v. Frith]], 6 Wend. 103; [[Union Sawmill Co. v. Mitchell]], 122 La. 900, 48 South 317; [[Jordan v. Dobbins]], 122 Mass. 168.</ref> or insanity<ref>[[Beach v. First M. E. Church]], 96 Ill. 177.</ref> of either party before acceptance of the offer terminates it. The continuance of an offer is in the nature of a constant repetition of it, which necessarily requires someone capable of making a repetition.<ref>[[Pratt v. Trustees]], 93 lll. 478.</ref> Hence an acceptance communicated to the representatives of the maker of an offer cannot bind him. And since an offer unaccepted creates no rights, it can transmit none to the representatives of the person to whom the offer is made, and they have no power to accept it on behalf of his estate.<ref>[[Sutherland v. Perkins]], 76 Ill. 338.</ref> But in the case of contracts made through the mail where, as we have seen, the offerer, by using the post office, makes it his agent to receive the acceptance, the death of either party after the acceptance was mailed but before the letter could reach the offerer, would not affect the case, the contract being complete the moment the acceptance was mailed.<ref>[[Mactler v. Frith]], 6 Wend. 103. 21 Am. Dec. 262.</ref>

====Death of offeror====
Generally death (or incapacity) of the offeror terminates the offer. This does not apply to option contracts.

The offer cannot be accepted if the offeree knows of the death of the offeror.<ref>[[Fong v. Cilli]] (1968) 11 FLR 495</ref> In cases where the offeree accepts in ignorance of the death, the contract may still be valid, although this proposition depends on the nature of the offer. If the contract involves some characteristic personal to the offeror, the offer is destroyed by the death.

====Death of offeree====
An offer is rendered invalid upon the death of the offeree.<ref>[[Re Irvine]].</ref>

===Change of Circumstances===
An offer may lapse from a change of the circumstances under which it was made. The destruction of the subject matter of the contract;<ref>See [[Contracts/Consent|Consent]].</ref> the dissolution of a partnership to whom or by whom it was made;<ref>[[Goodspeed v. Wiard Plow Co.]], 46 Mich. 322, 7 N.W. 902.</ref> a change in the physical condition of one to whom an offer to insure his life has been made;<ref>[[Equitable L. Assur. Co. v. McElroy]], 83 Fed. 631; [[Canning v. Farquhar]], 16 Q.B.D. 727, 66 L.J.Q.B. 225.</ref> and the bankruptcy of one of the parties which transfers all his property to trustees<ref>[[Meynell v. Surtees]], 1 Jur. N.S. 737, 25 L.J. Ch. 257.</ref> have been held to cause the offer to come to an end.

== See also ==
*[[wikisource:1911 Encyclopædia Britannica/Acceptance|1911 Encyclopædia Britannica definition of Acceptance]]
*[[:fr:Bataille des conditions générales|Bataille des conditions générales]] (The Battle of the Forms in France)
*[[Harris v Nickerson]]
*[[Implied in fact contract]]
*[[Last shot]] rule
*[[Proposal (business)]]
*[[Wolf v Forfar Potato Co]]

== References ==
{{Reflist|30em}}