Every enforceable contract consists of three basic elements: offer, acceptance and consideration. In this module, we’ll explore offer and acceptance, which constitute mutual assent, the basic building block of a contract.
Mutual Assent
Mutual assent requires (1) an intent to be bound; and (2) definiteness of essential terms.[1] In the popular case of Lucy v. Zehmer, the defendant was out at a restaurant and signed away his farm to the plaintiff on the back of a guest check.[2] When the plaintiff sued to enforce the agreement the defendant claimed to have made the offer jokingly.
The court adopted an objective test with a subjective element to determine whether there was an intent to be bound, and – more specifically – a manifestation of mutual assent:
- Would a reasonable person in the position of the promisee understand from the promisor’s words and conduct an intent to be bound by the agreement?
- Did the promisee, in fact, believe that a legitimate offer was made?
Objectively, the court found the words and conduct surrounding the agreement warranted a reasonable belief that parties intended to be bound by an enforceable agreement. The parties had discussed the contract for over forty minutes, there were revisions made to the original agreement and there was a provision to examine title.[3]
The court held that the undisclosed intention by the defendant that he did not believe he was making a real offer, and was merely joking, was immaterial because the plaintiff was unaware of the defendant’s uncommunicated intent.[4] It is irrelevant what the parties actually intended, rather – what matters – is what a normal person would understand under the circumstances.[5] The subjective element is fairly simple to demonstrate. Here, the plaintiff did in fact believe the defendant had made a legitimate offer.
Courts will commonly rely on these five factors to determine whether the parties have manifested an intent to be bound:
(1) the language of any preliminary agreement
(2) whether there are terms left open
(3) whether there has been partial performance
(4) the overall context of the negotiations, and
(5) any relevant customs involving those types of transaction. For example, whether a standard form is typical for transactions of that kind.[6]
The Restatement of Contracts, which is a series of rules written by experts in the field that represents contract law as applied by most courts, lists additional factors, including whether the agreement is highly detailed or relatively simple, whether the amount is large or small and whether the contract is unusual or common.[7]
Indefiniteness
Indefiniteness or missing terms does not generally invalidate a contract. Rather, a contract can be enforceable even if important terms are missing.[8] Courts can supply reasonable terms under the circumstances as “gap fillers” to make up for the missing terms. Article 2 of the Uniform Commercial Code, which applies in all states to contracts for the sale of goods, lists several such gap fillers.[9] The UCC even goes so far as to enforce a contract when the price is missing, allowing the court to enforce the sale for a “reasonable” price at the time of delivery.[10]
In the English case of Raffles v. Wichelhaus, the plaintiff contracted to sell cotton arriving on a ship named Peerless.[11] The defendant believed that there was only one ship named Peerless that would arrive from Bombay in October. However, the Plaintiff’s shipment was expected to arrive in December from a different ship named Peerless. When the cotton arrived, the defendant was unwilling to accept the delivery.
There were no terms in the contract regarding delivery or time of shipment. The court held that since the parties failed to state at the time of contracting which ship would carry the goods, the contract was enforceable as written and defendant was obligated to accept the shipment.
However, where the contract is indefinite to the point that the parties cannot be said to have had a meeting of the minds or where one party clearly anticipates that something will be settled as part of the negotiations and where it is never settled, the contract may be unenforceable.[12]
Offers
The Restatement states that an offer requires a “manifestation of willingness to enter into a bargain.” Therefore, an offer requires some act that gives another person the power to create a contractual relationship between the parties. An offer is made if the other person would be justified in believing “his assent to that bargain is invited and will conclude it.”[13] This person then has the power of acceptance.
Typically, price quotes or price lists – by themselves – are not sufficient to constitute offers.[14] Rather, a legally enforceable contract does not arise until an order is given “in accordance with the proposed terms.”[15] Therefore, the order is considered the offer. Most cases hold that the transaction is not complete until the order is then accepted.[16] So, for example, if you see a price listed on an e-commerce website, that listing it not yet an offer. When you order the product, you are making an offer, which the merchant can accept or reject (such as, for example, if the product is out of stock or if the price has increased). When the merchant confirms your order, that is an acceptance and creates a binding agreement.
However, the language used in responding to a prospective purchaser is key. In one Kentucky case, a purchaser sent a letter to the seller inquiring about the price of mason jars.[17] The seller responded, listing prices for certain sizes and included the language “for immediate acceptance.”[18] The Purchaser responded attempting to purchase ten mason jars, however the seller did not fulfill the order because the mason jars were already sold to another party. The purchaser then sued for breach of contract.
The Court of Appeals held the letter including the terms “for immediate acceptance” was strong evidence of an offer – rather than a price quote – which, upon acceptance, would create a binding contract. Therefore, seller was liable for breach of contract since purchaser had accepted the offer by requesting the ten mason jars.[19]
Advertisements
Advertisements are generally not considered offers and are generally treated as an invitation to make an offer. Therefore, no contract is formed until acceptance by the seller. In one New York case, for example, Pepsico aired a commercial advertisement indicating that customers could cash in Pepsi rewards for various prizes, including one for a military fighter jet.[20] When one person attempted to turn in the required number of points for the jet, the court held that no contract was formed. The court stated that advertisements are not offers unless the terms are sufficiently clear to leave nothing open for further negotiation.
However, there is an exception to the rule that advertisements are not considered offers. If the advertisement is “clear, definite, explicit, and leaves nothing open for negotiations,” it is an offer.[21] To determine whether an advertisement to the public constitutes an offer depends on “whether the facts show that some performance was promised in positive terms in return for something requested.”[22]
A Minnesota court treated a newspaper advertisement – for fur coat accessories selling at $1.00 – as an offer. The defendant placed two advertisements in the local newspaper a week apart from one another. In the advertisements, the defendant listed the quantity, type of item, price, and included the term “first come, first served.” Since the advertisement was targeted towards the offeree (the “first come”), it was considered an offer. Thus, its acceptance by a purchaser would create a contract.[23]
An example of an indefinite communication not being considered an offer occurred in Kolodziei v. Mason in 2014 in a decision by the Eleventh Circuit Court of Appeals. That case involved a contract dispute between a law student and a defense attorney in a prominent murder case. A television station interviewed the attorney and the attorney, to illustrate publicly that his client could not have committed the crime in the timeframe alleged by the government, said that he would pay one million dollars to anyone who could complete a drive from an airport to a nearby hotel in the amount of time his client was alleged to have made the trip.[24]
An eager law student tried to accept the lawyer’s proposal by completing the task, but the attorney refused to pay him when he attempted to redeem the reward. The court disagreed with the law student and found that the attorney did not demonstrate the intent required to make an offer. The attorney’s statement was not definite or certain enough to constitute an offer because he didn’t specify the starting and ending points of the challenge. The court also pointed to other elements of the attorney’s statement to demonstrate that a reasonable person listening to the interview should have realized that the attorney had no intent to make a serious offer.
Termination of an Offer
An offer can be terminated in several ways before the offer is accepted.
- The first is rejection, which terminates the power of acceptance. An example of an indirect rejection is a counter-offer. Whether a counter offer is express or implied, it counts as rejection and terminates the offer.[25]
- The second is revocation. Revocation occurs when the offeror manifests an intention not to enter into the proposed agreement.[26] At any time before acceptance, the offeror retains control over the offer. This includes the right to modify or terminate the offer.
- The third is lapse – an offer will lapse within the time stated in the offer, or – in the event that no time for expiration is specified – at the end of a reasonable time. [27]
- Finally, death terminates an offer. Death deprives a person of the legal capacity to enter into a proposed contract.[28]
Revocation can be direct or indirect. In one case, the defendant promised the plaintiff he would leave an offer open to sell a tract of land until the following Monday.[29] The plaintiff was notified by a third party that the defendant had made an offer to sell the same land to another party. With this new knowledge, the plaintiff attempted to accept the offer, but the defendant refused. Although the revocation wasn’t communicated directly to the plaintiff, the court held the offer was indirectly revoked because it was unambiguously made known to the plaintiff that he no longer had the power of acceptance.[30]
In that case, there was no offer even though the plaintiff had promised to leave the offer open. The promise to leave the offer open was unenforceable because it was unsupported by consideration. That is, the promisor had not received anything of value in exchange for the promise to keep the offer open. As we’ll see in module 3, all contracts require consideration to be binding.
Occasionally, the parties entering into a contract may want to ensure that an offer to enter into a contract is held open for a certain period of time. An offer can be enforceably preserved for a period of time with an option contract. An option contract requires some consideration, such as payment, in exchange for the ability to prevent the offeror from revoking the offer. This payment must be separate from the consideration required to form the underlying contract. For example:
Marissa and David are looking at venues for their upcoming wedding. Sam offers them a venue for the date they are hoping to marry. Though they love it, they are not yet ready to sign the agreement to book the venue. Sam agrees, in writing, to allow Marissa and David to decide by next Monday whether to retain the venue for that specified date. Marissa and David pay Sam two hundred dollars in exchange for the right to decide by next Monday. This is an option contract. Under an option contract, Marissa and David can accept or reject the offer by next Monday. After that date, the option contract expires, and the offer becomes revocable.[31]
Acceptance
The general rule is that a contract invites acceptance in any manner and by any means reasonable under the circumstances, unless the language and circumstances clearly indicate otherwise.[32] Therefore, courts will consider whether there is any language controlling the method of acceptance. Without any specific language, any reasonable method will constitute acceptance.
An offeree can accept an offer by undertaking the performance requested or by making an oral or written statement indicating acceptance of the offer.[33] What is important is that the acceptance is communicated to the offeror.[34] An offer becomes a legally enforceable contract once it is accepted.[35]
Silence is rarely a valid form of acceptance unless one of the following exceptions apply:[36]
- “The parties had agreed previously that silence would be an acceptance”
- “The offeree has taken the benefit of the offer” or
- Through “previous dealings between the parties, it is reasonable that the offeree should notify the offeror if she does not intend to accept.”[37]
Mirror Image Rule
The “Mirror Image Rule” is the requirement that the offeree must accept all of the offer’s original terms. The offeree may not modify or add any terms to the offer. If acceptance alters any terms or adds additional terms, no contract is formed.[38] Therefore, it is said that acceptance must “mirror” the offer.
In a case before the Supreme Court of North Dakota, the plaintiff, hoping to purchase a tract of land from the defendants, drafted a purchase agreement, signed it, and sent it to the defendants for a signature.[39] The defendants modified the document by writing additional terms and changes to the existing terms directly on the document. They signed the agreement and sent it back to the plaintiff after making these changes.
The plaintiff sued to enforce the original agreement, arguing that a contract had formed when the defendants had signed it. The state supreme court disagreed and found that no contract was formed, reasoning that the defendants didn’t adhere to the mirror image rule. They had made material changes to the original offer and the plaintiff never consented to them.
The UCC Rules on Acceptance
Contracts for the sale of goods fall under the Uniform Commercial Code’s Section 2-207, which modifies the mirror image rule. Under §2-207 of the Uniform Commercial Code, acceptance does not have to mirror the initial offer. Rather, an acceptance that varies from the offer is a valid acceptance without the changes, and the changes become proposals for new agreements, which the offeror can accept or reject.[40]
The UCC, though, provides for different rules if the agreement is between merchants. A merchant is a person who deals in goods of that kind or otherwise holds himself out as having the skill or knowledge special to the particular practice.
If the contract is between merchants, the additional terms do become a part of the contract unless the additional terms are “material.” “Material” terms are those that would cause undue hardship or surprise if enforced. Examples of undue hardship or surprise normally include arbitration clauses or those that waive essential warranties. Also, the terms will not become a part of the contract if the offeror has expressly limited acceptance to the contract terms or if the terms have already been objected to previously.
Whether between merchants or non-merchants, if the parties act as though there is a valid contract even though there are contradictory terms, the Uniform Commercial Code will presume there is a binding contract between the parties. The terms that conflict will not be considered a part of the contract. Rather, the court will insert “reasonable” terms in their places.
The Mailbox Rule
The mailbox rule’s purpose is to assist a court in deciding which action is valid when the communication of an acceptance and revocation aren’t instantaneous.[41] Under the mailbox rule, acceptance of an offer by the offeree is valid as soon as he sends it.[42] Once an offeree accepts the offer, the offeror cannot revoke the offer. On the other hand, if an offeror wishes to revoke the offer, that revocation is valid only when the offeree receives it. A rejection by the offeree is also valid only once the offeror receives it. The rule is commonly stated as “acceptance upon dispatch, and rejection or revocation upon receipt.”
With more instantaneous forms of communication like telephone and email, unless a rejection or revocation takes place before the acceptance, the acceptance is valid upon communicating it over the phone.[43] The rules related to email are governed by the Uniform Electronic Transactions Act, adopted by almost every state. This Act provides that, in electronic communications, acceptance is valid when it has been sent. To have been “sent,” the communication must be properly addressed or directed to the recipient, must be in a form the recipient can process, and must be in a system outside the sender’s control or within the recipient’s control.[44]
In our next module, we will turn to the last building block of a binding contract: the rule requiring consideration for a contract to be enforceable.
[1] Cochran v. Norkunas, 919 A.2d 700, 708 (Md. Ct. App. 2006).
[2] Lucy v. Zehmer, 196 Va. 493, 497-98 (1954).
[3] Id. at 501.
[4] Lucy, 196 Va. at 503 (citing the Restatement (Second) of Contracts § 71). The court noted that the undisclosed intention of a party is immaterial except when an unreasonable meaning which he attaches to his manifestation is known to the other party.
[5] Higgins v. Oil, Chemical & Atomic Workers Int’l Union, 811 S.W.2d 875, 880 (Tenn. 1991).
[6] Cochran v. Norkunas, 919 A.2d 700, 708-09 (Md. Ct. App. 2006).
[7] Id. (citing Restatement (Second) of Contracts § 27).
[8] Higgins, 811 S.W.2d at 881.
[9] See e.g., UCC § 305, 307, 308, 309, etc.
[10] UCC § 305(1)
[11] Rafflesv. Wichelhaus, 2 Hurl & C. 906 (1864).
[12] See Stanton v. Dennis, 64 Wash. 85, 116 P. 650 (1911)
[13] Extreme Mach. & Fabricating, Inc. v. Avery Dennison Corp, 49 N.E.3d 324, 329-30 (Ohio Ct. App. 2016) (internal citations omitted).
[14] I& R Mech. Inc. v. Hazelton Mfg. Co, 817 N.E.2d 799 (Mass. App. Ct. 2004); Fairmont Glass Works v.Cruden-Martin Woodenware Co, 106 Ky. 659, 664 (Ct. App. 1899).
[15] Id. See also Extreme Mach. & Fabricating, Inc., 49 N.E.3d at 330 (“[A] price quotation ‘may be deemed an offer to form a binding contract if it is sufficiently details, and if it appears from the terms of the quotation that all that is needed to ripen the offer into a contract is the recipient’s assent.’”) (internal quotations omitted).
[16] Fairmont Glass Works, 106 Ky. at 664.
[17] Id. at 665.
[18] Id.
[19] Id.
[20] Leonard v. Pepsico, Inc., 88 F. Supp. 2d 116, 118-20 (S.D.N.Y. 1999).
[21] Lefkowitzv. Great Minneapolis Surplus Store Inc., 86 N.W.2d 689, 691 (Minn. 1957).
[22] Id.
[23] Id.
[24] Kolodziej v. Mason, 774 F.3d 736, 738 (11th Cir. 2014).
[25] Restatement (Second) of Contract § 38.
[26] Restatement (Second) of Contract § 42.
[27] Restatement (Second) of Contract § 41.
[28] Restatement (Second) of Contracts § 48.
[29] Dickinsonv. Dodds, 2 Ch. Div. 463 (1876).
[30] Restatement (Second) of Contracts § 43.
[31] Restatement (Second) of Contracts § 87.
[32] ExtremeMach. & Fabricating, Inc. v. Avery Dennison Corp, 49 N.E.3d 324, 329-30 (Ohio Ct. App. 2016)
[33] 2 Williston on Contracts § 6:1 (4th ed.).
[34] St.Romain v. Midas Exploration, Inc., 430 So. 2d 1354, 1357 (La. Ct. App. 1983).
[35] I & R Mech. v. Hazelton Mfg. Co., 817 N.E. 2d 799, 802.
[36] Cochran v. Norkunas, 919 A.2d 700 (Md. Ct. App. 2006).
[37] Id. at 414 (citing Restatement (Second) of Contracts § 69).
[38] 17A Am. Jur. 2d Contracts § 80.
[39] Ehlenv. Melvin, 823 N.W.2d 780, 781-84 (N.D. 2012).
[40] Unif.Comm. Code §2-207.
[41] 17A Am. Jur. 2d Contracts § 98.
[42] Cochranv. Norkunas, 919 A.2d at 714.
[43] Restatement(Second) of Contracts § 64.
[44] 2 Williston on Contracts § 6:41 (4th ed.).