American Contract Law for a Global Age, 2017a

Unit 6
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CONTRACT FORMATION
Part Four
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Acceptance
FOCUS OF THIS UNIT
You should now know what qualifies as an offer and when an offer terminates.
The next question in contract formation is whether an open offer as been accepted.
So what exactly do we mean when we talk about contractual “acceptance”?
Offer Controls Acceptance. When we say that the offeror is “master of the
offer,” we mean that the offeror gets to define how the offer must be accepted. For
example, suppose the authors approached you and said, “We will pay you $20 if you
will stand up on one leg in the middle of your Property class, flap your arms like a
bird, and recite the first paragraph of the Preamble to the Communist Manifesto. We
don’t want your promise; we’ll pay you only if you actually do it.” 1 Based on that offer,
then the only way you can accept it is by doing exactly what we said. If you say, “I
accept,” you haven’t, in fact, acceptance, because we clearly told you that we didn’t
want your acceptance. There is no contract. You are not obliged to do anything at that
point, and we are free to revoke our offer. If, in fact, you stand on both legs, or you
recite the Preamble to the United States Constitution, you have not accepted the
offer. Being “master of the offer” simply means that the offeror has the power to
specify exactly how an offer can be accepted.
Notice that while our definition of an “offer” does take into account whether
the offeree reasonably believes there is an offer, we do not concern ourselves with
whether he believes he has accepted. Instead, to accomplish the latter, the offeree
must do what the offeror says. Intent is not usually the key. This point may seem
obvious, but problems arise from the fact that in the real world—the world in which
contract law must actually operate—people are not necessarily precise about what
they want or what they are doing. Ordinary people rarely recite, “I hereby accept your
1 [We have been advised by our counsel to clearly say “Just kidding!” at this point to prevent
you from suing us for twenty dollars after you embarrass yourself and annoy your Property professor.
But see Leonard v. PepsiCo (holding that an over-the-top joke did not constitute an offer) – Eds.]
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UNIT 6: ACCEPTANCE 95