The Agreement: Acceptance
- Definition of Acceptance
- An offeree’s manifestation of assent to the terms of an offer
- 3 requirements
- Intent to enter into the contract
- Judged by an objective standard
- Outward manifestations, such as words and body language, rather than subjective intent
- Specht v. Netscape Communications Corp.
- Click-wrap contracts have generally been found to be enforceable by courts
- Browse-wrap contracts, however, fail to require a user’s indication of asset to form a contract
- Acceptance of the terms proposed by the offeror
- Common law
- Acceptance must be the mirror image of the offer
- If the acceptance includes additional or different terms, then a counteroffer results and the original offer is rejected
- UCC
- Does not require a mirror image acceptance
- 2-207 deems a definite and timely expression of acceptance to create a contract, even if it includes terms that are different from or additional to those stated in the offer
- If the parties are both merchants, additional terms become part of the contract, unless
a)The offer expressly limits acceptance to its own terms
b)The new terms would materially alter the offer; or
c)The offer gives notice of objection to the new terms within a reasonable time after receiving acceptance
- Communication of acceptance to the offeror
- In a bilateral contract, the offeree must make the promise requested by the offeror
- In a unilateral contract, the offeree must fully perform the requested act
- Manner of communication
- The offeror may specify the exact time, place and manner in which acceptance may be received
- If the offeror merely suggests the manner of acceptance or is silent, however, the offeree may accept within a reasonable time by any reasonable means of communication
- When is Acceptance Communicated?
- Instantaneous forms of communication: when parties deal face to face, via telephone, or other instantaneous modes of communication, acceptance is effective as soon as the offeree expresses it by words such as “I accept” (as long as the offer is still valid)
- Noninstantaneous forms of communication
- Mailbox rule
- Properly addressed and dispatched acceptances are effective when they are sent
- Even if they are never received by the offeror
- An acceptance is properly dispatched if complies with the manner of communication authorized by the offeree either
- Expressly; or
- Impliedly
- An acceptance mailed prior to revocation that does not reach the offeror until after revocation is valid
- Both common law and the UCC follow the mailbox rule
- Stipulated means of communication: if the offer stipulates a means of acceptance, an acceptance by any other means will not create a contract
- Special Acceptance Problem Areas
- Acceptance of unilateral contracts
- The offeree must perform the request act to accept
- However, once the offeree starts to perform, courts will likely prevent the offeror from revoking for the time reasonably necessary to complete performance
- Acceptance of bilateral contracts
- Generally, the offeree must make the promise requested by the offeror to accept
- Acceptance can also be implied by action that indicates agreement
- Silence as acceptance
- Generally silence is not considered acceptance
- Silence may operate as acceptance if
- Prior dealings indicate use of silence
- The offeree indicates silence will be acceptance (“If I have responded in a week, I accept.”)
- Offeree accepts offeror’s performance, knowing a return performance is expected
- Acceptance when a writing is anticipated: if parties have concluded negotiations and reached agreement on all essential aspects, most courts will find a contract even without a formal writing
- Acceptance by shipment
- May be accepted by either a prompt promise to ship or shipment itself
- **Note: sellers can avoid breaching the contract if they include a note explaining the reason for the nonconforming goods, known as an accommodation**
Type of goods / Result
Nonconforming goods / Acceptance followed by breach
Conforming goods / Acceptance