Stat. Supp.*: Rest. 2d Contracts, §§ 17, 22, 24, 26-27, 50, 59, 61, 33 §17 Requirement of a Bargain: a. Except as stated in Subsection (2), formation of contract requires a bargain which manifests mutual assent to the exchange and a consideration. b. Whether or not bargain exists, a contract may be formed under special rules applicable to formal contracts or under rules in §82-94. i. Meeting of the minds: Actual & apparent assent mental reservation of a party to a bargain doesn’t impair their obligations they purport to undertake. Manifestation of Assent in General §22 Mode of Assent: Offer and Acceptance 1. The manifestation of mutual assent to an exchange ordinarily takes the form of an offer or proposal by one party followed by an acceptance by the other parties. 2. A manifestation of mutual assent may be made even though neither offer nor acceptance can be identified and even if moment of formation can’t be determined. a. Assent by course of conduct – problems with offer & acceptance with K’s involving advance commitment. Making of Offers §24 Offer Defined - An offer is manifestation of willingness to enter into a bargain, so made as to justify another person in understanding that their assent to that bargain is invited and will conclude it. o Offer as promise offer itself is a promise, revocable until accepted o Proposal of gift IS NOT an offer must be element of EXCHANGE. Not an offer unless it specifies a promise or performance by the offeree (accepting deal) as the price/consideration given by them §26 Preliminary Negotiations = don’t have offer to be accepted - Manifestation of willingness to enter into a bargain [Element of an offer] is NOT an offer if other party knows or has reason to know that the person making the offer doesn’t INTEND to CONCLUDE a bargain until they have made a further manifestation of assent o Interpretation of proposals for exchange: Actor intends to make a bargain in the future, but only if he makes some further manifestation of assent If offeree of a proposal has a reason to know that no offer is intended no offer even though offeree understands it to be an offer o ADVERTISING: Not generally intended or understood as offers to sell. Offer directed to general public possible must have language of commitment or invitation to take action without further communication Leonard v. Pepsico o Quotation of price: commonly understood as inviting an offer rather than making one even if directed towards a certain customer. But word “quote” can = offer o Invitation of bids or other offers: Common for one party to request the other to make an offer. o Preliminary manifestations as terms of later offer: Preliminary communication can form part of written contract since it can contain promises or representations which are incorporated in subsequent offer. §27 Existence of Contract Where Written Memorial is Contemplated = unless ya doooo - Manifestation of assent that are in themselves sufficient to conclude a contract WILL NOT BE PREVENTED from so operating by the fact that the parties also manifest an intention to prepare and adopt a written memorial thereof; but the circumstances may show that the agreements are preliminary negotiations. o Possible to create a contract of terms to include an obligation to execute subsequently a final writing which will contain certain provisions. If parties have definitely agreed and final writing shall contain final execution provisions and no others, they have concluded contract. o But if either party knows or has a reason to know that the other party regards the agreement as incomplete then the preliminary negotiations and agreements do not constitute a contract. Topic 5. Acceptance of Offers §50 Acceptance of Offer Defined; Acceptance by Performance; Acceptance by Promise 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 request that the offeree complete every act essential to the making of the promise. a. Mode of acceptance: Assent to same bargain proposed by the offer and comply to terms of offeror (identity and mode of manifesting acceptance – might be particular mode of manifesting acceptance) b. Acceptance by Performance: When the offer requires acceptance by performance and does not invite a return promise, such as ordinary cases of an offer of a reward, a contract can be created only by the offeree’s performance i. Illustrations: 1. 1. A, who is about to leave on a month's vacation, tells B that A will pay B $50 if B will paint A's porch while A is away. B says he may not have time, and A says B may decide after A leaves. If B begins the painting, there is an acceptance by performance which operates as a promise to complete the job. See §§ 32, 62. 2. 2. In Illustration 1, B also expresses doubt whether he will be able to finish the job, and it is agreed that B may quit at any time but will be paid only if he finishes the job during A's vacation. If B begins the painting, there is an acceptance by performance creating an option contract. See § 45. c. Acceptance by Promise: A promissory acceptance may be explicitly required by the offer or may be the only type of acceptance which is reasonable under the circumstances, or the offeree may choose to accept by promise an offer which invites acceptance either by promise or by performance. § 59 Purported Acceptance Which Adds Qualifications - A reply to an offer which purports to accept it but is conditional on the offeror’s assent to terms additional to or different from those offered is not an acceptance but is a counteroffer. o Qualified Acceptance: Qualified/conditional acceptance proposes an exchange different from that proposed by the original offeror counteroffer terminates the power of acceptance of the original offeree. BUT, If acceptance isn’t made to depend on assent to the additional or different terms, then definite and seasonable expression of acceptance is operative despite the additional or different terms SEE §62 OF UCC 2-207(1) additional terms are construed as proposal for modification of the contract. o Statement of conditions implied in offer: Fact that the offeree makes a conditional promise is not sufficient to show that his acceptance is conditional. §61 Acceptance Which Requests Change of Terms - An acceptance which requests a change or addition to the terms of the offer is not thereby invalidated unless the acceptance is made to depend on an assent to the changed or added terms. o Interpretation of acceptance: Acceptance must be unequivocal but requesting modification of the proposed terms doesn’t prevent purposed acceptance from closing the contract. UNLESS, if fairly interpreted, the offeree’s assent depends on the offerors’ further acquiescence in the modification. §33 Certainty 1. Even though a manifestation of intention is intended to be understood as an offer, it can’t be accepted to form a contract unless the terms of the contract are reasonably certain. 2. The terms of a contract are reasonably certain if they provide a basis for determining the existence of a breach and for giving an appropriate remedy. 3. The fact that one or more terms of a proposed bargain are left open or uncertain may show that a manifestation of intention is not intended to be understood as an offer or as an acceptance. a. Certainty of terms: Sometimes terms are left open or undefined, but actions of the parties may show conclusively they intended to conclude a binding agreement. In such cases, courts will endeavor, if possible, to attach a sufficiently definite meaning to the bargain b. Certainty in basis for remedy: See Uniform Commercial Code § 2-204(3) and Comment. c. Preliminary negotiations: If the parties to negotiations for sale manifest an intention not to be bound until the price is fixed or agreed, the law gives effect to that intention. Uniform Commercial Code § 2-305(4). The more terms the parties leave open, the less likely it is that they have intended to conclude a binding agreement. See Uniform Commercial Code § 2-204 and Comment. d. Uncertain time of performance e. Indefinite Price: Where the parties manifest an intention not to be bound unless the amount of money to be paid by one of them is fixed or agreed and it is not fixed or agreed there is no contract. Uniform Commercial Code § 2-305(4). i. Illustrations: 1. A promises to sell and B to buy goods “at cost plus a nice profit.” The quoted words strongly indicate that the parties have not yet concluded a bargain. 2. A promises to do a specified piece of work and B promises to pay a price to be thereafter mutually agreed. The provision for future agreement as to price strongly indicates that the parties do not intend to be bound. If they manifest an intent to be bound, the price is a reasonable price at the time for doing the work. f. Other indefinite terms: The more important the uncertainty, the stronger the indication is that the parties do not intend to be bound; minor items are more likely to be left to the option of one of the parties or to what is customary or reasonable Uniform Commercial Code (UCC), Article 2, §§ 2- 204(3), 2-305, 2-308 to 2-310 § 2-204. Formation in General. 1. A contract for sale of goods may be made in any manner sufficient to show agreement, including conduct by both parties which recognizes the existence of such a contract. 2. An agreement sufficient to constitute a contract for sale may be found even though the moment of its making is undetermined. 3. Even though one or more terms are left open a contract for sale does not fail for indefiniteness if the parties have intended to make a contract and there is a reasonably certain basis for giving an appropriate remedy. a. Subsection 1: recognizes any manner of expression of agreement – oral, written or otherwise appropriate conduct is sufficient to establish an agreement. b. Subsection 2: appropriate conduct by the parties may be sufficient to establish an agreement even though exact point of which deal was closed isn’t clear c. Open terms commercial standards on the point of indefiniteness i. The more terms the parties leave open, the less likely it is that they have intended to conclude a binding agreement, but their actions may be frequently conclusive on the matter despite the omissions. §2-305. Open Price Term 1. The parties, if they so intend, can conclude a contract for sale even though the price isn’t settled. In such a case, the price is a REASONABLE PRICE AT THE TIME FOR DELIVERY if: a. Nothing is said as to price; or b. The price is left to be agreed by the parties and they fail to agree; or c. The price is to be fixed in terms of some agree MARKET or other STANDARD as set or recorded by a third person or agency and it is not so set or recorded. 2. A price to be fixed by the seller or by the buyer means a price for him to fix in GOOD FAITH. 3. When a price left to be fixed otherwise than by agreement of the parties fails to be fixed through FAULT of one party, the other may at this option treat the contract as CANCELLED or themselves FIX A REASONABLE PRICE 4. However, where the parties intend not be bound unless the price be fixed or agreed and it is not fixed or agreed, there is NO CONTRACT. In such a case, the buyer must return any goods already received or if unable to do so must pay their reasonable value at the time of delivery and the seller must return any portion of the price paid on account. - Rejects “an agreement to agree is unenforceable and rejects defeating agreements on the ground of “indefiniteness” Recognizes dominant intention of the parties to have the deal continue to be binding upon both. - Good faith: observance of reasonable commercia standards of fair dealing in the trade if the party is a merchant. o “Posted price, given price, price in effect, market price satisfies good faith requirement. § 2-308. Absence of Specified Place for Delivery Unless otherwise agreed: (a) The place for delivery is the seller’s place of business or if he has none his residence; but (b) In a contract for sale of identified goods which to the knowledge of the parties at the time of contracting are in some other place, that place is the place of their delivery; (c) Document of title may be delivered through customary banking channels. - Rules of this section apply only “unless otherwise agreed”! §2-309. Absence of Specific Time Provisions; Notice of Termination 1. The time for shipment or delivery or any other action under a contract if not provided in this Article or agreed upon shall be a reasonable time. 2. Where the contract provides for successive performances but is indefinite in duration it is valid for a reasonable time but unless otherwise agreed may be terminated at any time by either party. 3. Termination of a contract by one party except on the happening of an agreed event requires that reasonable notification be received by the other party and an agreement dispensing with notification is invalid if its operation would unconscionable. - Reasonable time good faith and commercial standards in Sections 1-304, 1-205 and 1201 - Basic principles upheld: avoid surprises, good faith judgement protected, notice or negotiation to reduce uncertainty is favored. §2-312. Open Time for Payment or Running of Credit Unless otherwise agreed (a) Payment is due at the time and place at which the buyer is to receive the goods even though the place of shipment is the place of delivery. UCC §2-305. Open Price Term The parties if they so intend can conclude a contract for sale even though the price is not settled. In such a case the price is a reasonable price at the time for delivery if a) nothing is said as to price; or b) the price is left to be agreed by the parties and they fail to agree; or c) the price is to be fixed in terms of some agreed market or other standard as set or recorded by a third person or agency and it is not so set or recorded. UCC § 2-308. Absence of Specified Place for Delivery Unless otherwise agreed - the place for delivery of goods is the seller's place of business or if he has none his residence; but UCC § 2-310. Open Time for Payment… Unless otherwise agreed a) payment is due at the time and place at which the buyer is to receive the goods even though the place of shipment is the place of delivery; and b) if the seller is authorized to send the goods he may ship them under reservation, and may tender the documents of title, but the buyer may inspect the goods after their arrival before payment is due unless such inspection is inconsistent with the terms of the contract (Section 2-513); . . . Topic 4. Duration of the Offeree’s Power of Acceptance § 36 Methods of Termination of the Power of Acceptance 1. An offeree’s power of acceptance may be terminated by: a. Rejection or counteroffer by the offeree, or b. Lapse of time, or c. Revocation by the offeror or d. Death or incapacity of the offeror or offeree 2. In addition, an offeree’s power of acceptance is terminated by the non-occurrence of any condition of acceptance under the terms of the offer § 37 Termination of Power of Acceptance Under Option Contract Notwithstanding §§38-49, the power of acceptance under an option contract is not terminated by rejection or counteroffer, by revocation, or by death or incapacity of the offeror, unless the requirements are met for the discharge of contractual duty. - Option contract: Promise which meets the requisites of a contract but limits the promisor’s power to revoke an offer different from specific particulars of performance because the offeree can choose not to undertake any contractual duties at all (protects offeree from an offeror’s ability to revoke their offer to engage in a contract) o Under an option contract, bargained away power to revoke §38 Rejection 1. An offeree’s power of acceptance is terminated by his rejection of the offer unless the offeror has manifested a contrary intention. 2. A manifestation of intention not to accept an offer is rejection unless the offeree manifests an intention to take it under further advisement. - RELIANCE: Probable legal consequential effect on the offeror. o Failure to prepare or failure to send notice of revocation difficult to prove so power of acceptance is terminated without proof of reliance. Illustrations: - A makes an offer to B and adds: “This offer will remain open for a week.” B rejects the offer the following day, but later in the week purports to accept it. There is no contract unless the offer was itself a contract. B's purported acceptance is itself a new offer. A makes an offer to sell water rights to B, and states, “You may accept this offer by applying to the appropriate authority for a permit to use the water.” B rejects the offer, obtains water rights elsewhere, and later applies for the permit contemplated by the offer. There is no contract. Even if A's offer was a binding option, B has not exercised it. Contrary statement of offeror or offeree: If the offeree states that he rejects the offer for the present but will reconsider it at a future time, there is no basis for a change of position by the offeror in reliance on a rejection, and under Subsection (2) there is no rejection. §39 Counteroffers 1. A counteroffer is an offer made by an offeree to his offeror relating to the same matter as the original offer and proposing a substituted bargain differing from that proposed by the original offer. 2. An offeree’s power of acceptance is terminated by his making of a counteroffer unless the offeror has manifested a contrary intention or unless the counteroffer manifests a contrary intention of the offeree. - Counteroffer as rejection: Said to be same as rejection because it has the same effect in terminating the offeree’s power of acceptance. But different from rejection because counteroffer must be capable of being accepted carries off negotiations rather than breaking them off. o Illustration: A offers B to sell him a parcel of land for $5,000, stating that the offer will remain open for thirty days. B replies, “I will pay $4,800 for the parcel,” and on A's declining that, B writes, within the thirty day period, “I accept your offer to sell for $5,000.” There is no contract unless A's offer was itself a contract (see § 37), or unless A's reply to the counteroffer manifested an intention to renew his original offer. - Qualified acceptance inquiry or separate offer: Type of counter which purports to accept the original offer but makes acceptance expressly condition on assent to addition or different terms o DIFFERENT from an unqualified acceptance that’s accompanied by a proposal for modification of the agreement or for a separate agreement. Mere inquiry ≠ counteroffer because too tentative, indefinite, deals with new matters rather than a substitution for the original offer, language may manifest intention to keep original offer. o Illustration: A makes the same offer to B as that stated in Illustration 1, and B replies, “Won't you take less?” A answers, “No.” An acceptance thereafter by B within the thirty-day period is effective. B's inquiry was not a counteroffer, and A's original offer stands. - Contrary statement of offeror or offeree: An offeror may state in his offer that it shall continue for a stated time in any event and that in the meanwhile he will be glad to receive counteroffers. Likewise, an offeree may state that he is holding the offer under advisement, but that if the offeror desires to close a bargain at once the offeree makes a specific counteroffer. Such an answer will not extend the time that the original offer remains open but will not cut that time short. o Illustration: A makes the same offer to B as that stated in Illustration 1. B replies, “I am keeping your offer under advisement, but if you wish to close the matter at once I will give you $4,800.” A does not reply, and within the thirty-day period B accepts the original offer. B's acceptance is effective. §40 Time When Rejection or Counteroffer Terminates the Power of Acceptance - Rejection or counteroffer by mail or telegram doesn’t 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 is only a counteroffer unless the acceptance is received by the offeror before he receives the rejection or counteroffer. o Receipt essential: A rejection terminates the offeree’s power of acceptance because of the probability of reliance by the offeror and there is no possibility of reliance until the rejection is received. Therefore, power continues until receipt. o Subsequent acceptance: Since a rejection or counteroffer isn’t effective until received, it may until that time be superseded by an acceptance. However, this rule only applies to a rejection or counteroffer which is otherwise effective. Illustration: A makes B an offer by mail. B immediately after receiving the offer mails a letter of rejection. Within the time permitted by the offer B accepts. This acceptance creates a contract only if received before the rejection, or if the power of acceptance continues under §§ 37- 39. §41 Lapse of Time 1. An offeree’s power of acceptance is terminated at the time specified in the offer or, if no time is specified, at the end of a reasonable time. 2. What is a reasonable time is a question of fact, depending on all the circumstances existing when the offer and attempted acceptance are made. 3. Unless otherwise indicated by the language or the circumstances, and subject to the rule stated in §49, an offer sent by mail is seasonably accepted if an acceptance is mailed at any time before midnight on the day on which offer is received. a. Specified time: Offer can prescribe identify of the offeree or form of acceptance can also prescribe time limit for acceptance. b. Reasonable Time: In absence of contrary indication, just as acceptance may be made in any manner and by any medium which is reasonable in the circumstances, so it may be made at any time which is reasonable in the circumstances. i. Generally, question is what time would be thought satisfactory to the offeror by a reasonable person in the position of the offeree, but circumstances not known to the offeree may be relevant to show that the time actually taken by the offeree was satisfactory to the offeror. c. Direct negotiations: When parties bargain face to face or over the phone, time for acceptance doesn’t ordinarily extend beyond the end of the conversation unless a contrary intention is indicated either by express words by the circumstances. i. Illustration: 1. While A and B are engaged in conversation, A makes B an offer to which B then makes no reply, but on meeting A again a few hours later B states that he accepts the offer. There is no contract unless the offer or the circumstances indicate that the offer is intended to continue beyond the immediate conversation. §42 Revocation by Communication from Offeror Received by Offeree - An offeree’s power of acceptance is terminated when the offeree receives from the offeror a manifestation of an intention not to enter into the proposed contract. o Revocability of offers: Most offers are revocable. Some may rest on the express or implied terms of the offer ex. bids at an auction Offer is revocable even though it expressly states the contrary because of doctrine that an informal agreement is binding as a bargain only if supported by consideration. §43 Indirect Communication of Revocation - An offeree’s power of acceptance is terminated when the offeror takes definite action inconsistent with an intention to enter into the proposed contract and the offeree acquires reliable information to that effect. §48 Death or Incapacity of Offeror or Offeree - An offeree’s power of acceptance is terminated when the offeree or offeror dies or is deprived of legal capacity to enter into the proposed contract. § 30 Form of Acceptance Invited 1. An offer may invite or require acceptance to be made by an affirmative answer in words, or by performing or refraining from performing a specified act, or may empower the offeree to make a selection of term in his acceptance. 2. Unless otherwise indicated by the language or the circumstances, an offer invites acceptance in any manner and by any medium reasonable in the circumstances. a. Required form: Offeror is master of the offer. Form of acceptance is often quite immaterial in relation to identity of the offeree. But offeror is entitled to insist on a particular mode of manifestation of assent; may limit acceptance to a particular mode. i. Illustration: 1. A sends a letter to B stating the terms of a proposed contract. At the end he writes, “You can accept this offer only by signing on the dotted line below my own signature.” A replies by telegram, “I accept your offer.” There is no contract. b. Invited Form: Insistence on a particular form of acceptance is unusual. Language referring to a particular mode of acceptance is often intended and understood as suggestion rather than limitation suggested mode is authorized but other modes aren’t precluded. §32 Invitation of Promise or Performance - In case of doubt an offer is interpreted as inviting the offeree to accept either by promises to perform what the offer requests or by rendering the performance, as the offeree chooses. o Promise or performance: Unless the language or the circumstances indicate that one party is to have an option, the usual offer invites an acceptance which either amounts to performance or constitutes a promise. Rule is particular application of the rule stated in §30(2). Illustrations: 1. A writes B, “If you will mow my lawn next week, I will pay you $10.” B can accept A's offer either by promptly promising to mow the lawn or by mowing it as requested. 2. A says to B: “If you finish that table you are making and deliver it to my house today, I will give you $100 for it.” B replies, “I'll do it.” There is a contract. B could also accept by delivering the table as requested. o Offer limited to acceptance by performance only: Language or circumstances sometimes makes it clear that the offeree is not to bind themselves in advance of performance. In such cases, the offer doesn’t invite a promissory acceptance and a promise is ineffective as an acceptance. Separate question undertakes any responsibility to complete performance once begun Quality of the performance when complete Illustrations: 3. A publishes the following offer: “I will pay $50 for the return of my diamond bracelet lost yesterday on State Street.” B sees this advertisement and at once sends a letter to A, saying “I accept your offer and will search for this bracelet.” There is no acceptance. 4. A writes to B, his nephew aged 16, that if B will refrain from drinking, using tobacco, swearing, and playing cards or billiards for money until he becomes 21 years of age, A will pay B $5,000. B makes a written reply promising so to refrain. There is probably no contract. But if B begins to refrain, A may be bound by an option contract under § 45; and if B refrains until he becomes 21, A is bound to pay him $5,000. §45 Option Contract Created by Part Performance or Tender 1. Where an offer invites an offeree to accept by rendering a performance does not invite a promissory acceptance, AN OPTION CONTRACT is created when the offeree tenders or BEGINS the INVITED PERFORMANCE or tenders a beginning of it. 2. The offeror’s duty of performance under any option contract so created is conditional on completion or tender of the invited performance in accordance with the terms of the offer. a. Offer limited to acceptance by performance only: This section is limited to cases where the offer doesn’t invite a promissory acceptance Instead, referred to as an “offer for a unilateral contract” i. Ex: Offers of rewards, prizes, non-commercial arrangements among relatives and friends. b. Manifestation of contrary intention: This rule is designed to protect the offeree in justifiable reliance on the offeror’s promise. Yield to a manifestation of intention which makes reliance unjustified. c. Beginning to perform: If the invited performance takes time, then the invitation to perform necessarily includes an invitation to BEGIN performance. In most such cases, the beginning of performance carries with it an express or implied promise to complete performance. i. In the less common case where the offer doesn’t contemplate or invite a promise by the offeree, the beginning of a performance nevertheless completes the manifestation of mutual assent and furnishes consideration for an option contract. ii. Illustrations: 1. A offers a reward for the return of lost property. In response to the offer, B searches for the property and finds it. A then notifies B that the offer is revoked. B makes a tender of the property to A conditional on payment of the reward, and A refuses. There is a breach of contract by A. 2. A, a magazine, offers prizes in a subscription contest. At a time when B has submitted the largest number of subscriptions, A cancels the contest. A has broken its contract with B. 3. A writes to her daughter B, living in another state, an offer to leave A's farm to B if B gives up her home and cares for A during A's life, B remaining free to terminate the arrangement at any time. B gives up her home, moves to A's farm, and begins caring for A. A is bound by an option contract. d. Completion of performance: Where part performance or tender by the offeree creates an option contract, the offeree is not bound to complete performance. The offeror alone is bound, but his duty of performance is conditional on completion of the offeree's performance. If the offeree abandons performance, the offeror's duty to perform never arises e. Preparations for performance. What is begun or tendered must be part of the actual performance invited in order to preclude revocation under this Section. Beginning preparations, though they may be essential to carrying out the contract or to accepting the offer, is not enough i. Preparations to perform may constitute justifiable reliance sufficient to make the offeror’s promise binding. ii. Illustration: 1. A makes a written promise to pay $5000 to B, a hospital, “to aid B in its humanitarian work.” Relying upon this and other like promises, B proceeds in its humanitarian work, expending large sums of money and incurring large liabilities. Performance by B has begun, and A's offer is irrevocable. §51 Effect of Part Performance Without Knowledge of Offer - Unless the offeror manifests a contrary intention, an offeree who learns of an offer after he has rendered part of the performance requested by the offer may accept by completing the requested performance. §60 Acceptance of Offer Which States Place, Time or Manner of Acceptance - 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 – commercially reasonable. § 62 Effect of Performance by Offeree Where Offer Invites Either Performance or Promise 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 a acceptance operates as a promise to render complete performance. a. The offeree's power to choose: The offeror normally invites a promise by the offeree for the purpose of obtaining performance of the promise. Full performance fulfills that purpose more directly than the promise invited, and hence constitutes a reasonable mode of acceptance. The offeror can insist on any mode of acceptance, but ordinarily he invites acceptance in any reasonable manner; in case of doubt, an offer is interpreted as inviting the offeree to choose between acceptance by promise and acceptance by performance. See §§ 30, 32, 58. b. Part performance or tender:. Where acceptance by performance is invited and no promise is invited, the beginning of performance or the tender of part performance creates an option contract and renders the offer irrevocable. See §§ 37, 45. Under Subsection (1) of this Section the offer is similarly rendered irrevocable where it invites the offeree to choose between acceptance by promise and acceptance by performance. In both types of cases, if the invited performance takes time, the invitation to perform necessarily includes an invitation to begin performance; if performance requires cooperation by the offeror, there is an offer only if acceptance can be completed by tender of performance. But unless an option contract is contemplated, the offeree is expected to be bound as well as the offeror, and Subsection (2) of this Section states the implication of promise which results from that expectation. See Illustration 5 to § 32. In such standard cases as the shipment of goods in response to an order, the acceptance will come to the offeror's attention in normal course; in other cases, the rule of § 54(2) ordinarily requires prompt notification. d. Preparations for performance: As under § 45, what is begun or tendered must be part of the actual performance invited, rather than preparation for performance, in order to make the rule of this Section applicable. See Comment f to § 45. But preparations to perform may bring the case within § 87(2) on justifiable reliance. . . . § 63 Time When Acceptance Takes Effect Unless the offer provides otherwise, (a) 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 (b) An acceptance under an option contract is not operative until received by the offeror. a. Rationale. It is often said that an offeror who makes an offer by mail makes the post office his agent to receive the acceptance, or that the mailing of a letter of acceptance puts it irrevocably out of the offeree's control. Under United States postal regulations, however, the sender of a letter has long had the power to stop delivery and reclaim the letter. A better explanation of the rule that the acceptance takes effect on dispatch is that the offeree needs a dependable basis for his decision whether to accept. In many legal systems such a basis is provided by a general rule that an offer is irrevocable unless it provides otherwise. The common law provides such a basis through the rule that a revocation of an offer is ineffective if received after an acceptance has been properly dispatched. See Comment c to § 42. Acceptance by telegram is governed in this respect by the same considerations as acceptance by mail. b. Loss or delay in transit. In the interest of simplicity and clarity, the rule has been extended to cases where an acceptance is lost or delayed in the course of transmission. The convenience of the rule is less clear in such cases than in cases of attempted revocation of the offer, however, and the language of the offer is often properly interpreted as making the offeror's duty of performance conditional upon receipt of the acceptance. Indeed, where the receipt of notice is essential to enable the offeror to perform, such a condition is normally implied. See Comment c to § 226. c. Revocation of acceptance. The fact that the offeree has power to reclaim his acceptance from the post office or telegraph company does not prevent the acceptance from taking effect on dispatch. Nor, in the absence of additional circumstances, does the actual recapture of the acceptance deprive it of legal effect, though as a practical matter the offeror cannot assert his rights unless he learns of them. An attempt to revoke the acceptance by an overtaking communication is similarly ineffective, even though the revocation is received before the acceptance is received. After mailing an acceptance of a revocable offer, the offeree is not permitted to speculate at the offeror's expense during the time required for the letter to arrive. d. A purported revocation of acceptance may, however, affect the rights of the parties. It may amount to an offer to rescind the contract or to a repudiation of it, or it may bar the offeree by estoppel from enforcing it. In some cases it may be justified as an exercise of a right of stoppage in transit or a demand for assurance of performance. Compare Uniform Commercial Code §§ 2-609, 2-702, 2-705. Or the contract may be voidable for mistake or misrepresentation, §§ 151- 54, 164. See particularly the provisions of § 153 on unilateral mistake. f. Option contracts. An option contract provides a dependable basis for decision whether to exercise the option, and removes the primary reason for the rule of Subsection (1). Moreover, there is no objection to speculation at the expense of a party who has irrevocably assumed that risk. Option contracts are commonly subject to a definite time limit, and the usual understanding is that the notification that the option has been exercised must be received by the offeror before that time. Whether or not there is such a time limit, in the absence of a contrary provision in the option contract, the offeree takes the risk of loss or delay in the transmission of the acceptance and remains free to revoke the acceptance until it arrives. Similarly, if there is such a mistake on the part of the offeror as justifies the rescission of his unilateral obligation, the right to rescind is not lost merely because a letter of acceptance is posted. See §§ 151- 54. a. Illustrations: i. A, for consideration, gives B an option to buy property, written notice to be given on or before a specified date. Notice dispatched before but not received until after that date is not effective to exercise the option. ii. A submits a bid to supply goods to the Government, which becomes irrevocable when bids are opened. Within a reasonable time the Government mails a notice of award of the contract to A. Until A receives the notice, there is no contract binding on the Government. § 66 Acceptance Must Be Properly Dispatched - 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. o Rationale. Under § 50, acceptance by promise is not effective until the offeree has completed every act essential to the making of the promise. Reasonable diligence to notify is essential under § 56, except as stated in § 69. It follows that, notwithstanding § 63, acceptance by mail or telegram is not effective on dispatch unless the acceptor exercises reasonable diligence to notify the offeror. Compare the rules as to acceptance by performance stated in § 54. This Section specifies what constitutes reasonable diligence: it would be most unusual for an offer to invite acceptance by the sending, for example, of a misdirected letter or telegram. o Proper address. The offeree may fulfill the requirement that an acceptance be properly addressed by using a return address indicated in the offer, whether in a letterhead or otherwise. But any other place held out by the offeror as the place for receipt of such communications will do as well. . . . Whether a reply to an offer may properly be sent to a residential address not specified in the negotiations depends on the circumstances. If the acceptance is duly received despite misdirection, the rule of § 67 may apply. § 67 Effect of Receipt of Acceptance Improperly Dispatched - Where an acceptance is seasonably dispatched but the offeree uses means of transmission not invited by the offer or fails to exercise reasonable diligence to insure safe transmission, it is treated as operative upon dispatch if received within the time in which a properly dispatched acceptance would normally have arrived. § 68 What Constitutes Receipt of Revocation, Rejection or Acceptance - A written revocation, rejection, or acceptance is received when the writing comes into the possession of the person addressed, or of some person authorized by him to receive it for him, or when it is deposited in some place which he has authorized as the place for this or similar communications to be deposited for him. § 69 Acceptance by Silence or Exercise of Dominion 1. Where an offeree fails to reply to an offer, his silence and inaction operate as an acceptance in the following cases only: a. Where an offeree takes the benefit of offered services with reasonable opportunity to reject them and reason to know that they were offered with expectation of compensation. b. 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 silence and inactive tends to accept the offer. [Offeror needs to get in the head to the offeree of “intent”] c. Where because of previous dealings or otherwise, it is reasonable that the offeree should notify the offeror if he does not intent 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 is an acceptance only if ratified by him. a. Acceptance by silence is exceptional. Ordinarily an offeror does not have power to cause the silence of the offeree to operate as acceptance. See Comment b to § 53. The usual requirement of notification is stated in § 54 on acceptance by performance and § 56 on acceptance by promise. The mere receipt of an unsolicited offer does not impair the offeree's freedom of action or inaction or impose on him any duty to speak. The exceptional cases where silence is acceptance fall into two main classes: those where the offeree silently takes offered benefits, and those where one party relies on the other party's manifestation of intention that silence may operate as acceptance. Even in those cases the contract may be unenforceable under the Statute of Frauds. b. Acceptance of offered services. Services rendered cannot be recovered in specie, and there is in general no right to restitution of the value of services rendered officiously or gratuitously. Even where services are rendered by mistake, the right to restitution is limited. See Restatement of Restitution §§ 40-42, 56. But when the recipient knows or has reason to know that the services are being rendered with an expectation of compensation, and by a word could prevent the mistake, his privilege of inaction gives way; under Subsection (1)(a) he is held to an acceptance if he fails to speak. The resulting duty is not merely a duty to pay fair value, but a duty to pay or perform according to the terms of the offer. i. Illustration: 1. A gives several lessons on the violin to B's child, intending to give the child a course of twenty lessons, and to charge B the price. B never requested A to give this instruction but silently allows the lessons to be continued to their end, having reason to know A's intention. B is bound to pay the price of the course. c. Intent to accept. The mere fact that an offeror states that silence will constitute acceptance does not deprive the offeree of his privilege to remain silent without accepting. But the offeree is entitled to rely on such a statement if he chooses. The case for acceptance is strongest when the reliance is definite and substantial or when the intent to accept is objectively manifested though not communicated to the offeror. Compare §§ 54, 87(2). Even though the intent to accept is manifested only by silent inaction, however, the offeror who has invited such an acceptance cannot complain of the resulting uncertainty in his position. i. Illustrations: 1. A offers by mail to sell to B a horse already in B's possession for $250, saying: “I am so sure that you will accept that you need not trouble to write me. Your silence alone will operate as acceptance.” B makes no reply, but he does not intend to accept. There is no contract. 2. The facts being otherwise as stated in Illustration 2, B replies by return mail, saying: “I accept your offer.” There is a contract. 3. The facts being otherwise as stated in Illustration 2, B makes no reply and remains inactive with the intention of thereby expressing his acceptance. There is a contract d. Prior conduct of the offeree. Explicit statement by the offeree, usage of trade, or a course of dealing between the parties may give the offeror reason to understand that silence will constitute acceptance. In such a situation the offer may tacitly incorporate that understanding, and if the offeree intends to accept the case then falls within Subsection (1)(b). Under Subsection (1)(c) the offeree's silence is acceptance, regardless of his actual intent, unless both parties understand that no acceptance is intended. . . . 3. Exercise of dominion. An offeree in possession of offered property commonly has a duty or privilege to hold it for the offeror, or, if storage is inconvenient or hazardous, to return it, sell it for the offeror's account, or otherwise dispose of it. … But the offeree's privilege to remain silent without accepting does not extend to acts of ownership not assented to by the offeror. Hence exercise of dominion, even though not intended as acceptance under Subsection (1) (b) and not given meaning by prior conduct under Subsection (2).