An acceptance is “a manifestation of assent to the terms [of the offer] made by the offeree in the manner invited or required by the offer.” In determining if an offeree accepted an offer and created a contract, a court will look for evidence of three factors: (1) the offeree intended to enter the contract, (2) the offeree accepted on the terms proposed by the offeror, and (3) the offeree communicated his acceptance to the offeror.
Common Law: Traditional “Mirror Image” Rule
The traditional contract law rule is that an acceptance must be the mirror image of the offer. Attempts by offerees to change the terms of the offer or to add new terms to it are treated as counteroffers because they impliedly indicated an intent by the offeree to reject the offer instead of being bound by its terms. However, recent years have witnessed a judicial tendency to apply the mirror image rule in more liberal fashion by holding that only material (important) variances between an offer and a purported acceptance result in an implied rejection of the offer.
Even under the mirror image rule, no rejection is implied if an offereee merely asks about the terms of the offer without indicating its rejection (an inquiry regarding terms), or accepts the offer’s terms while complaining about them (a grumbling acceptance). Distinguishing among a counteroffer, an inquiry regarding terms, and a grumbling acceptance is often a difficult task. The fundamental issue, however, remains the same: Did the offeree objectively indicate a resent intent to be bound by the terms of the offer?
Communication of Acceptance
To accept an offer for a bilateral contract, the offeree must make the promise requested by the offer. An offeror must communicate the terms of his proposal to the offeree before an offer results. This is so because communication is a necessary component of the present intent to contract required for the creation of an offer. For similar reasons, it is generally held that an offeree must communicate his intent to be bound by the offer before a contract can be created. To accept an offer for a unilateral contract, however, the offeree must perform the requested act. The traditional contract law rule on this point assumes that the offeror will learn of the offeree’s performance and holds that no further notice from the offeree is necessary to create a contact unless the offeror specifically requests notice.
Under the so-called “mailbox rule,” properly addressed and dispatched acceptances can become effective when they are dispatched, even if they are lost and never received by the offeror. The mailbox rule protects the offeree’s reasonable belief that a binding contract was created when the acceptance was dispatched. By the same token, it exposes the offeror to the risk of being bound by an acceptance that she has never received. The offeror, however, has the ability to minimize this risk by stipulating in her offer that she must actually receive the acceptance for it to be effective. Offerors who do this maximize the time they have to revoke their offers and ensure that they will never be bound by an acceptance that they have not received.
As traditionally applied by the common law of contracts, the mailbox rule would make acceptances effective upon dispatch when the offeree used a manner of communication that was expressly or impliedly authorized (invite) by the offeror. Any manner of communication suggested by the offeror (e.g., “You may respond by mail”) would be expressly authorized, resulting in an acceptance sent by the suggested means being effective on dispatch. Unless circumstances indicated to the contrary, a manner of communication used by the offeror in making the offer would be impliedly authorize (e.g., an offer sent by mail would impliedly authorize an acceptance by), as would a manner of communication common in parties’ trade or business (e.g., a...
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