ACCEPTANCE

§54. ACCEPTANCE BY PERFORMANCE; NECESSITY OF NOTIFICATION TO OFFEROR

(1) Where an offer invites an offeree to accept by rendering a performance, no notification is necessary to make such an acceptance effective unless the offer requests such a notification.

(2) If an offeree who accepts by rendering a performance has reason to know that the offeror has no adequate means of learning of the performance with reasonable promptness and certainty, the contractual duty of the offeror is discharged unless

(a) the offeree exercises reasonable diligence to notify the offeror of acceptance, or

(b) the offeror learns of the performance within a reasonable time, or

(c) the offer indicates that notification of acceptance is not required.

§56. ACCEPTANCE BY PROMISE; NECESSITY OF NOTIFICATION TO OFFEROR

Except as stated in §69 or where the offer manifests a contrary intention, it is essential to an acceptance by promise either that the offeree exercise reasonable diligence to notify the offeror of acceptance or that the offeror receive the acceptance seasonably.

Comments:

a. Necessity of notification. Where the offeree has performed in whole or in part, notification to the offeror is not essential to acceptance, although failure to notify may discharge the offeror's duty of performance. See §54. Similarly, where the offeror has rendered a performance and the offeree has taken the benefit of that performance, the offeree may be bound without notification to the offeror. See §69. In such cases the enforcement of the promise rests in part on a change of position in justifiable reliance on a promise, often reinforced by a corresponding benefit received by the promisor....

Illustration 2. A makes written application for life insurance through an agent for B Insurance Company, pays the first premium, and is given a receipt stating that the insurance "shall take effect as of the date of approval of the application " at B's home office. Approval at the home office in accordance with B's usual practice is an acceptance of A's offer even though no steps are taken to notify A.

§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 counter-offer.

Comments:

a. Qualified acceptance. A qualified or conditional acceptance proposes an exchange different from that proposed by the original offeror. Such a proposal is a counter-offer and ordinarily terminates the power of acceptance of the original offeree. See §39....But a definite and seasonable expression of acceptance is operative despite the statement of additional or different terms if the acceptance is not made to depend on assent to the additional or different terms. See §61; Uniform Commercial Code §2-207(1). The additional or different terms are then to be construed as proposals for modification of the contract. See Uniform Commercial Code §2-207(2). Such proposals may sometimes be accepted by the silence of the original offeror. See §69.

b. Statement of conditions implied in offer. To accept, the offeree must assent unconditionally to the offer as made, but the fact that the offeree makes a conditional promise is not sufficient to show that his acceptance is conditional. The offer itself may either expressly or by implication propose that the offeree make a conditional promise as his part of the exchange. By assenting to such a proposal the offeree makes a conditional promise, but his acceptance is unconditional. The offeror's promise may also be conditional on the same or a different fact or event.

Illustration

3. A makes a written offer to B to sell him Blackacre. By usage the offer is understood as promising a marketable title. B replies, "I accept your offer if you can convey me a marketable title." There is a contract.

§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.

Comment:

a. Interpretation of offer. If the offeror prescribes the only way in which his offer may be accepted, an acceptance in any other way is a counter-offer. But frequently in regard to the details of methods of acceptance, the offeror's language, if fairly interpreted, amounts merely to a statement of a satisfactory method of acceptance, without positive requirement that this method shall be followed.

Illustrations:

1. A mails an offer to B in which A says, "I must receive your acceptance by return mail." An acceptance sent within a reasonable time by any other means, which reaches A as soon as a letter sent by return mail would normally arrive, creates a contract on arrival....

2. A makes an offer to B and adds, "Send your office boy around with an answer to this by twelve o'clock." The offeree comes himself before twelve o'clock and accepts. There is a contract.

3. A offers to sell his land to B on certain terms, also saying: "You must accept this, if at all, in person at my office at ten o'clock tomorrow." B's power is strictly limited to one method of acceptance.

4. A offers to sell his land to B on certain terms, also saying: "You may accept by leaving word at my house." This indicates one operative mode of acceptance; but B's power is not limited to that mode alone. A personal statement to A would serve just as well.

5. A makes an offer to B and adds, "my address is 53 State Street." This is a business address. B sends an acceptance to A's home which A receives promptly. Unless the circumstances indicate that A has made a positive requirement of the place where the acceptance must be sent, there is a contract.

§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.

§64. ACCEPTANCE BY TELEPHONE OR TELETYPE

Acceptance given by telephone or other medium of substantially instantaneously two-way communication is governed by the principles applicable to acceptances where the parties are in the presence of each other.

§65. REASONABLENESS OF MEDIUM OF ACCEPTANCE

Unless circumstances known to the offeree indicate otherwise, a medium of acceptance is reasonable if it is the one used by the offeror or one customary in similar transactions at the time and place the offer is received.

Comments:

a. Significance of use of reasonable medium. Under §30 an offer invites acceptance by any reasonable medium unless there is contrary indication; under §63 an acceptance so invited is ordinarily effective upon dispatch. If an unreasonable medium of acceptance is used, on the other hand, the governing rule is that stated in §67. Thus if an offer is made by mail, an acceptance by mail is ordinarily effective on dispatch.

b. Circumstances relevant to reasonableness.... Among the relevant circumstances not specified in this Section may be the speed and reliability of the medium, a prior course of dealing between the parties, and a usage of trade.

§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.

§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.

§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 the 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 silent and inactive intends to accept the offer.

(c) Where because of previous dealings or otherwise, it is reasonable that the offeree should notify the offeror if he does not intend 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 it is an acceptance only if ratified by him.

Comments:

a. Acceptance by silence is exceptional....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.

§70. EFFECT OF RECEIPT BY OFFEROR OF A LATE OR OTHERWISE DEFECTIVE ACCEPTANCE

A late or otherwise defective acceptance may be effective as an offer to the original offeror, but his silence operates as an acceptance in such a case only as stated in §69.