common law contract: acceptance
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The Study of Offer and Acceptance20. March 2012 Slide 1
Common Law of Contract
Mutual Assent: The Study of Offer and Acceptance, Part II
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The Study of Offer and Acceptance20. March 2012 Slide 2
Nature of Acceptance
Acceptance = offeree's manifestation of assent
Acceptance must be voluntary
Must have intent to enter into K on terms of offer.
Intent to accept is determined objectively
Only the offeree may accept
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The Study of Offer and Acceptance20. March 2012 Slide 3
Valid Acceptance
Remember, offeror has power to set terms of K and requirements for effective acceptance.
Offeree must accept terms
Offeree must accept in manner and within time prescribed.
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The Study of Offer and Acceptance20. March 2012 Slide 4
Formation Interpretation
Contract formation and content are judged using Objective Test
Whether offer was made
propriety of acceptance
performance or nonperformance of terms
TEST – interpret words or conduct as a reasonable person who stands in shoes of parties would.
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The Study of Offer and Acceptance20. March 2012 Slide 5
Three Main Issues
The means of acceptance
Communication of acceptance
Timeliness of acceptance
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The Study of Offer and Acceptance20. March 2012 Slide 6
Means of Acceptance
How must the offer be accepted?
Traditional Approach – Offer dictated that acceptance could be made by:
Performance – unilateral K
Return Promise – bilateral K
Modern Approach – unless otherwise indicated, offer invites acceptance by any reasonable means.
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The Study of Offer and Acceptance20. March 2012 Slide 7
Unilateral Contract
Eddy Rocky
$40 to paintkayak
acceptance bypainting
promise
performance
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The Study of Offer and Acceptance20. March 2012 Slide 8
When is this Important?
Most contracts are bilateral, so this distinction is usually not important.
When is it important?
When there is an argument over whether offeree used proper means of acceptance.
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The Study of Offer and Acceptance20. March 2012 Slide 9
Properly Conforming
More complicated question is whether acceptance conformed to the terms of the offer.
Classic Rule = acceptance must correspond exactly with terms of offer. (Mirror Image Rule, used in U.K.)
Modern Approach = acceptance must materially conform to offer (used in U.S.)
Nonconforming = counteroffer = rejection
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Different Meanings
Outright rejection with an explanation = rejection
vs.
Request for information = possibility of acceptance still open
Grumbling Acceptance = acceptance
Test – can offeror reasonably understand that offer is no longer alive?
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Example
Owner of farm writes to prospective buyer offering to sell property for $2 million. The offeree replies:
I accept your offer provided you reduce the price to $1.9 million.”
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Example 2
Same piece of property and offer. Offeree replies:
I am interested in the property, but not at your price.
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Example 3
Same property & price. Offeree replies:
I am considering your offer. Do you propose a cash sale, or will you take a mortgage for the price?
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Communication of Acceptance
Legal Assumption – unless otherwise clearly indicated, the offeror is more interested in attracting acceptance than what method communication is used.
Substantive terms of K are deemed central.
Terms for acceptance are deemed ancillary
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Communication Rules
Must comply with stated mandatory and exclusive method of acceptance.
If specified method does not reasonably appear to be exclusive, then reasonable method will suffice.
If no means are specified, then reasonable means will suffice.
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Silence, Inaction, Ambiguous Action
Required method of acceptance must involve deliberate, unambiguous action.
Offeror cannot impose duty on offeree to take affirmative steps to reject an offer.
Purpose of these rules is to protect offeree.
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When Silence Can Bind
Under two circumstances, silence binds the offeree:
Exercising ownership over property or keeping benefit of service after having reasonable opportunity to refuse.
Prior dealing between parties give offeror reasonable expectation that offeree will give notice of rejection.
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Timeliness of Acceptance
The offeror may specify when acceptance will be effective.
Need to distinguish between instantaneous and noninstantaneous communication
NOTE Under Option Contracts (firm offers), acceptance not effective until receipt.
If sent by unauthorized means, effective upon receipt.
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Instantaneous Communication
Generally, acceptance is effective as soon as manifested.
If interruption in communications:
When both parties are aware, no K until problem is fixed.
When only party is aware, must inform other party of problem ASAP or be bound by other party's reasonable understanding.
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Rule
RULE – with instantaneous communications, acceptance takes effect upon being successfully communicated unless one of the parties is reasonably aware of disruption.
To be determined by Objective Test
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Mailbox Rule
Adams v. Lindsell
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NonInstantaneous Communication
Remember – the offeror can always specify when acceptance become effective.
RULE – unless specified by offeror, acceptance is effective upon dispatch.
provided acceptance is made in a manner and medium authorized by offeror, if specified.
Burden is on offeree to prove proper dispatch
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Unauthorized Mode
If acceptance is never delivered, or delivered beyond reasonable time, then acceptance is effective upon RECEIPT.
Remember, fault here lies with the offeree.
Thus, doesn't get benefit of Mailbox rule.
But, if acceptance reaches offeror in timely manner, than wrong mode has no impact.
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Two Other Situations When Mailbox Rule Does Not Apply
Acceptance follows a counteroffer or rejection.
Offer is irrevocable (firm offer, option K)
Note – all other communications are effective upon receipt. Thus, acceptance is still good even though a subsequent revocation reaches offeror first.
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General Rules
Offer – effective upon receipt
Rejection or Counteroffer – effective upon receipt
can impact Mailbox Rule if sent before acceptance.
Revocation – effective upon receipt
Acceptance –
Instantaneous Communication – effect upon receipt
Noninstantaneous Communication effective upon proper dispatch
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What About EMail
Text says it is considered instantaneous communication.
Is it?
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Review: Normile v. Miller
Who is selling the house?
Who wants to buy the house?
Who made the original offer?
What did the offeree (person who received the offer) do with the original offer?
What did the offeror (person who made the original offer) do with the offeree's response?
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Normile v. Miller
Who eventually agreed to buy this house and why is this important?
What is the legal issue(s) that the court must address?
What does the court say generally is the effect of an “acceptance” that changes the terms of the original offer?
What does the court say the “net effect” of the defendantseller's “counteroffer” is in this case?
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Normile v. Miller
Why do the original offerors (“Plaintiff Appellants”) lose this case?
Under what circumstances might the “PlaintiffsAppellants” have won this case?