Contracts I


Restatement Second of Contracts § 50

Acceptance of Offer Defined; Acceptance by Performance; Acceptance by Promise

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  1. Acceptance of an offer is a manifestation of assent to the terms thereof made by the offeree in a manner invited or required by the offer.
  2. Acceptance by performance requires that at least part of what the offer requests be performed or tendered and includes acceptance by a performance which operates as a return promise.
  3. Acceptance by a promise requires that the offeree complete every act essential to the making of the promise.

The beginning of a performance is not acceptance of an offer for a unilateral contract. It is an acceptance of an offer that does not specify though.

Restatement Second of Contracts § 62

Effect of Performance by Offeree Where Offer Invites Either Performance or Promise

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  1. Where an offer invites an offeree to choose between acceptance by promise and acceptance by performance, the tender or beginning of the invited performance or a tender of a beginning of it is an acceptance by performance.
  2. Such an acceptance operates as a promise to render complete performance.
Restatement Second of Contracts § 69

Acceptance by Silence or Exercise of Dominion

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  1. Where an offeree fails to reply to an offer, his silence and inaction operate as an acceptance in the following cases only:
    1. Where an offeree takes the benefit of offered services with reasonable opportunity to reject them and reason to know that they were offered with the expectation of compensation.
    2. Where the offeror has stated or given the offeree reason to understand that assent may be manifested by silence or inaction, and the offeree in remaining silent and inactive intends to accept the offer.
    3. Where because of previous dealings or otherwise, it is reasonable that the offeree should notify the offeror if he does not intend to accept.
  2. An offeree who does any act inconsistent with the offeror's ownership of offered property is bound in accordance with the offered terms unless they are manifestly unreasonable. But if the act is wrongful as against the offeror it is an acceptance only if ratified by him.
When boilerplate terms conflict, UCC § 2-207 governs their resolution.
UCC § 2-207

Additional Terms in Acceptance or Confirmation.

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  1. A definite and seasonable expression of acceptance or a written confirmation which is sent within a reasonable time operates as an acceptance even though it states terms additional to or different from those offered or agreed upon, unless acceptance is expressly made conditional on assent to the additional or different terms.
  2. The additional terms are to be construed as proposals for addition to the contract. Between merchants such terms become part of the contract unless:
    1. the offer expressly limits acceptance to the terms of the offer;
    2. they materially alter it; or
    3. notification of objection to them has already been given or is given within a reasonable time after notice of them is received.
  3. Conduct by both parties which recognizes the existence of a contract is sufficient to establish a contract for sale although the writings of the parties do not otherwise establish a contract. In such case the terms of the particular contract consist of those terms on which the writings of the parties agree, together with any supplementary terms incorporated under any other provisions of this Act.
Restatement Second of Contracts § 54

Acceptance by Performance; Necessity of Notification to Offeror

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  1. Where an offer invites an offeree to accept by rendering a performance, no notification is necessary to make such an acceptance effective unless the offer requests such a notification.
  2. If an offeree who accepts by rendering a performance has reason to know that the offeror has no adequate means of learning of the performance with reasonable promptness and certainty, the contractual duty of the offeror is discharged unless
    1. the offeree exercises reasonable diligence to notify the offeror of acceptance, or
    2. the offeror learns of the performance within a reasonable time, or
    3. the offer indicates that notification of acceptance is not required.
Restatement Second of Contracts § 56

Acceptance by Promise; Necessity of Notification to Offeror

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Except as stated in [R2C § 69] or where the offer manifests a contrary intention, it is essential to an acceptance by promise either that the offeree exercise reasonable diligence to notify the offeror of acceptance or that the offeror receive the acceptance seasonably.

Restatement Second of Contracts § 60

Acceptance of Offer Which States Place, Time or Manner of Acceptance

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If an offer prescribes the place, time or manner of acceptance its terms in this respect must be complied with in order to create a contract. If an offer merely suggests a permitted place, time or manner of acceptance, another method of acceptance is not precluded.

Mailbox Rule

Acceptance in a manner invited by an offer is valid as soon as it is put out of the offeree's possession as long as it is properly addressed and the proper precautions are taken, without regard to whether it ever reaches the offeror.

Restatement Second of Contracts § 63

Time When Acceptance Takes Effect

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Unless the offer provides otherwise,

  1. an acceptance made in a manner and by a medium invited by an offer is operative and completes the manifestation of mutual assent as soon as put out of the offeree's possession, without regard to whether it ever reaches the offeror; but
  2. an acceptance under an option contract is not operative until received by the offeror.

Restatement Second of Contracts § 66

Acceptance Must Be Properly Dispatched

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An acceptance sent by mail or otherwise from a distance is not operative when dispatched, unless it is properly addressed and such other precautions taken as are ordinarily observed to insure safe transmission of similar messages.

Rejection by mail does not terminate the power of acceptance until it is received however.

Restatement Second of Contracts § 40

Time When Rejection or Counter-Offer Terminates the Power of Acceptance

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Rejection or counter-offer by mail or telegram does not terminate the power of acceptance until received by the offeror, but limits the power so that a letter or telegram of acceptance started after the sending of an otherwise effective rejection or counter-offer is only a counter-offer unless the acceptance is received by the offeror before he receives the rejection or counter-offer.