In legal terms, an offer is a clear, definitive, and communicated proposition by one party (the offeror) to enter into a contract on specified terms to be bound once accepted. An acceptance is an unequivocal indication by the party to whom the offer is made (the offeree) that they agree to the exact terms of the offer, thereby creating a binding contractual relationship.
Acceptance is a final and unqualified expression of agreement to the terms of an offer. It demonstrates a clear intention to be bound by the terms of the offer – see Adams v Lindsell (1818).
Not every expression of willingness to contract is an offer. Sometimes, it’s merely an ‘invitation to treat. Inviting to treat is a preliminary stage in the negotiation process, inviting others to make an offer.
The digital age has introduced complexities to the concepts of offer vs acceptance. The ‘mailbox rule’ (which states that acceptance is effective upon dispatch) can be problematic with electronic contracts. When is an email deemed to be received? What if there’s a server delay?
Furthermore, online platforms often use ‘click-wrap’ agreements, where users click an “I accept” button.
The terms are typically predefined here, and the user’s click signifies acceptance. This adds another modern dimension to the principles of offer and acceptance.
| Aspect | Offer | Acceptance |
|---|---|---|
| Definition | A proposal indicating a willingness to contract. | Unconditional agreement to the terms of an offer. |
| Party Making It | Offeror (the person making the offer). | Offeree (the person to whom the offer is made). |
| Intention to Contract | Demonstrates the intent to be legally bound. | Shows agreement with the offer’s terms. |
| Communication Required | Must be communicated to the offeree. | Must be communicated to the offeror. |
| Invitation to Treat | Not an invitation to treat (preliminary step). | Not an invitation to treat (indicates consent). |
| Revocation | An offer can be revoked before acceptance. | Effective upon communication to the offeror. |
| Rejection | Rejecting an offer terminates it. | A counteroffer or rejection ends the original offer. |
| Mirror Image Rule | Offeree’s acceptance must match the offer terms. | Must mirror the offer; variations may reject. |
| Communication Method | Acceptance method typically specified in the offer. | The communication method is often specified or implied by an offer. |
| Time Frame | It may have a specified expiration time/date. | It should be timely, often within a reasonable time. |
| Legal Consequences | Upon acceptance, a contract is formed. | Creates a legally binding contract between parties. |
When an offer is made without a specified expiration date, it doesn’t remain open indefinitely. Instead, the offer remains valid for a “reasonable” period. What’s considered “reasonable” is determined by the nature of the contract, industry practice, prior dealings between parties, and other surrounding circumstances.
For instance, a perishable good’s offer might be deemed reasonable for a much shorter duration than a real estate offer.
If either party believes the other is delaying unreasonably, it’s advisable to communicate intentions. The offeror can revoke the offer, or the offeree can seek clarity or accept before the offer is withdrawn.
The basic principle is that acceptance must involve a clear act or statement of agreement from the offeree – see Hyde v Wrench (1840). However, there are exceptions.
If the parties have a history of dealings where silence was understood as acceptance, or if the offeree starts performing the terms of the offer without expressly communicating acceptance, silence might be deemed an acceptance.
Additionally, if the offeror specifies that silence will be taken as acceptance and the offeree intends to accept by remaining silent, it could be valid. Nevertheless, such situations are exceptions, not the norm.
Typically, displaying goods for auction is not an offer but an “invitation to treat”. Each bid made by a participant is considered an offer. The auctioneer’s hammer fall signifies the acceptance of the highest bid, resulting in a binding contract.
A reserve price adds complexity. It is a confidential minimum price set by the seller. If bidding does not reach this price, the auctioneer is not obliged to sell the item.
If bids surpass the reserve price and the auctioneer doesn’t accept the highest bid, the auctioneer could face legal consequences.
However, if no bids meet the reserve, the auctioneer can decline all offers without legal repercussions.
Additionally, in “without reserve” auctions, the item must be sold to the highest bidder, regardless of the bid amount, reinforcing the importance of the distinction.
Offer and acceptance are foundational to contract law, marking the initial stages of a contract’s formation.
While the principles might seem straightforward, their application can be intricate, especially in modern contexts like e-commerce.