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Chapter 13 FORMATION OF CONTRACTS: OFFER AND ACCEPTANCE. Requirements of an Offer. The offer must have contractual intent . This intent is lacking if the statement is merely an invitation to negotiate, a statement of intention, or an agreement to agree at a later date.

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Requirements of an offer
Requirements of an Offer

  • The offer must have contractual intent.

    • This intent is lacking if the statement is merely an invitation to negotiate, a statement of intention, or an agreement to agree at a later date.

    • Newspaper ads, price quotations, and catalog prices are ordinarily invitations to negotiate.

Requirements of an offer1
Requirements of an Offer

  • An offer must be definite, with terms that are clear and spelled out.

    • Definite by incorporation.

    • Implied Terms (by law or conduct).

  • Exceptions: good faith performance, requirements and output contracts.

  • Offer must be communicated to Offeree.

  • Termination of offer
    Termination of Offer

    • Revocation. The ordinary offer may be revoked at any time by the offeror. All that is required is the showing of intent to revoke and the communication of that intent to the offeree.

    • By definition, an attempted acceptance made after the offer has been terminated has no effect.

    Termination of offer1
    Termination of Offer

    • An offer is also terminated by:

      • Counteroffer is the express rejection of the offer with a new offer.

      • Lapse of the time stated in the offer or of a reasonable time when none is stated.

      • Death or disability of either party.

      • Change of law that makes illegal a contract based on the particular offer.

    Termination of an offer
    Termination of an Offer

    Revocation Prior to Acceptance*

    By Offeror

    Death or Incapacity

    Time Limitations Placed in the Offer


    By Offeree


    Death or Incapacity

    *Options and firm offers excepted

    Acceptance of offer
    Acceptance of Offer

    • When the offer is accepted, a contract arises.

    • Only the offeree can accept an offer, and the acceptance must be of the offer exactly as made without any qualification or change.

    • The acceptance is any manifestation of intent to agree to the terms of the offer.

    • Ordinarily, silence or failure to act does not constitute acceptance.

    Acceptance of an offer
    Acceptance of an Offer

    Offeror makes

    an offer

    Offeree accepts offer


    Offeree changes or

    adds terms

    Offeree rejects




    No contract



    Original offeror

    accepts counteroffer


    Original offeror changes or adds terms

    Original offeror

    rejects counteroffer


    Acceptance of an offer1
    Acceptance of an Offer

    • An acceptance does not exist until the words or conduct demonstrating assent to the offer is communicated to the offeror.

      • Mailbox Rule: Acceptance by mail takes effect at the time and place when and where the letter is mailed or the fax is transmitted.

      • RULE: Acceptance upon dispatch, revocation upon receipt. 

    Mailbox rule is there a contract
    Mailbox Rule: Is There a Contract?

    FACTS:September 1, 1997 Seller mails an offer to Buyer

    September 2, 1997 Buyer receives offer

    Buyer mails acceptance

    September 3, 1997 Seller calls to revoke offer

    Buyer says he has already accepted

    September 4, 1997 The acceptance arrives

    Is there a contract?

    Assume the same scenario as above, but the buyer’s acceptance never arrives. Assuming the buyer has adequate proof of mailing the acceptance, is there a contract?

    Yes, in both cases. Proper acceptance is effective when sent, even if never received.

    Acceptance of an offer2
    Acceptance of an Offer

    • What method of acceptance is reasonable?

    • Telephone and Electronic Acceptance.

      • Telephone: acceptance upon phone call.

      • Email? Upon dispatch of email (send).


    • In an auction sale, asking for bids is an invitation to negotiate.

    • A person making a bid is making an offer, and the acceptance of the highest bid by the auctioneer is an acceptance of that offer and gives rise to a contract.

    • When the auction sale is without reserve, the auctioneer must accept the highest bid.