Caleb Vinson

Contracts
Sokolow
Overview of what Constitutes Acceptance, excluding 2-207
General Definitions
An acceptance is a voluntary act by an offeree whereby he or she exercises the

power conferred upon him by the offer, and thereby creates the set of legal relations

called a contract. While the scope of this paper is primarily the nature of acceptances, it is

suitable to define what is meant by both an offer and a contract. An offer is an act

whereby one person confers upon another the power to create contractual relations

between the parties. Finally, per the Restatement (second) of Contracts &1, a contract is a

promise or set of promises for which a duty is imposed such that the breach of the

promise is one for which the law gives a remedy.

Discussion
The provided definition of an acceptance is deceptive in its simplicity; there are a

number of circumstances which both limit and extend this definition according to the

particularities of the factual scenario. This discussion will proceed by: first, examining

different forms of acceptance; second, by examining revocation as a circumstance that

could render an acceptance void due to termination of the offer.

Acceptance can be given in myriad ways, including by verbal agreement, signed

writing, mail correspondence, or even silence (in rare circumstances). One key rule that

limits the possibilities for acceptance is that the offeror is the master or mistress of the

offer. For instance, in Evertite, the offeror included a stipulation that they had to take the

last act necessary to create a contract – this meant that they became the offeree by virtue

of an interrupting term within the contract. Hence, the Court held that Evertite’s

commencement of performance of the contract to begin construction on the Green’s roof

was an acceptance. The court further explained that commencing performance began

1
 Caleb Vinson
Contracts
Sokolow
when Evertite loaded up their trucks with workers and set out toward the Greens. Evertite

provides an avenue into another aspect of acceptance – under what circumstances an

offeree must give notification. In this instance, the court found that the necessity of

giving notice was less obvious because the offer was a unilateral contract; that invites

acceptance by means of performance rather than notice. Such an interpretation raises a

further consideration by courts in the absence of notice: can an offeree’s silence operate

as an acceptance? The general rule is that silence is not acceptance; however, courts have

carved out exceptions in circumstances where parties had repeated dealings in the past.

For example, in Prescott, the court found that a mental determination by a party that they

would accept that was not communicated did not create a binding acceptance, even when

supplemented by a letter sent to the offeror explaining an intent as to future action.

The result in Evertite is counter-intuitive and may be defined further by

examining the result in Int’l Filter; the offer in this agreement was actually proposed

when Conroe Gin put in an acceptance. The general principle that rides through both

cases is that one must look toward the terms of the offer to determine what constitutes

acceptance. In both of the cases mentioned above, the terms of the offer included a

provision by which the parties reserved the right to take the final act necessary to cement

the formation of a contract. Such an action creates a risk for the parties – that the offeror

may revoke the offer before the offeree has accepted.

Revocation is one means by which an offeror may terminate an offer. Revocation

constitutes termination when it is a definite action that would indicate to a reasonable

person that the offeror is not committed to proceeding with the proposed bargain. The

revocation need not even be direct as long as the offeror takes a definite action

2
 Caleb Vinson
Contracts
Sokolow
inconsistent with an intent to enter into the contract and the offeree acquires reliable

information to that effect. Revocation is examined in Dickinson. In that case, the power

of acceptance was revoked when the offeror took a definite action indicating an intent to

no longer engage in the contract and the offeree acquired reliable information to that

effect. The reliable information must be both subjectively and objectively reliable;

objective reliability requires that the information be true while subjective reliability

entails that it comes from a reliable source. An issue the court struggled with is whether

Dickinson’s claim that the offer would remain open until Friday morning at 9 A.M. was a

promise that the offer would remain open. They decided that the correspondence was not

enough to make the offer irrevocable because there was not consideration given by

Dodds, the other party in the case.

In Summa, an acceptance is a voluntary act by an offeree whereby he or she

exercises the power conferred upon him by the offer, and thereby creates the set of legal

relations called a contract. The act itself may take a variety of forms including written,

oral, by commencing performance, or even sometimes through silence. Silence as

acceptance may be limited, as exemplified by Prescott. Revocation is a termination of the

offer prior to acceptance and is enlightening in a discussion of what constitutes

acceptance insofar as it examines an intermediate action taken by the offeror by which

the prior forms of acceptance mentioned can be nullified by the offeror.