CHAPTER I. Offer and Acceptance. A CONTRACT consists in an actionable promise or promises. Every such promise involves two parties, a promisor and a promisee, and an expression of common intention or expectation as to the act or forbearance promised. So on the threshold of our subject we must bring the parties together, and must ask, How is this expectation created which the law will not allow to be disappointed? This part of our subject may be set forth briefly in the rules which govern offer and acceptance. must in offer and accept § 1. Every contract springs from the acceptance of an offer. Every expression of a common intention arrived at by (1) Agree two or more parties is ultimately reducible to question ment and answer. In speculative matters this would take the originate form, Do you think so and so?' 'I do.' For the purpose of creating obligations it may be represented as, ance. Will you do so and so?' 'I will.' If A and X agree that A shall purchase from X a property worth £50,000, we can trace the process to a moment at which X says A, 'Will you give me £50,000 for my property?' and A replies, 'I will.' If A takes a sixpenny book from X's book-stall the transaction is reducible to the same elements. X in displaying his wares says in act though not in word, Will you buy my goods at my price?' and A, taking the book with X's cognizance, says in act, 'I will.' So the law is laid down by Blackstone: If I take up Comm wares from a tradesman without any agreement *of [*12] to bk How offer and acceptance must be made. Principles of Contract, 6th ed. p. 6. price, the law concludes that I contracted to pay their real value.a As a promise involves something to be done or forborne. it follows that to make a contract, or voluntary obligation, this expression of a common intention must arise from an offer made by one party to another who accepts the offer made, with the result that one or both are bound by a promise or obligatory expression of intention.1 This process of offer and acceptance may take place in any one of four ways. 1. In the offer to make a promise or to accept a promise made, followed in either case by simple assent: this, in English law, applies only to contracts under seal. 2. In the offer of an act for a promise; as if a man offers goods or services which when accepted bind the acceptor to reward him for them. 3. In the offer of a promise for an act; as when a man offers a reward for the doing of a certain thing, which being done he is bound to make good his promise to the doer. 4. In the offer of a promise for a promise, in which case when the offer is accepted by the giving of the promise, the contract consists in outstanding obligations on both sides. It appears then that offer may assume three forms, the offer to make a promise, the offer to assent to a promise, and the offer of an act. Acceptance may likewise assume three forms, simple assent, the giving of a promise, or the doing of an act. a Sir F. Pollock suggests that there are modes of forming agreement otherwise than by question and answer. But I still think that question and answer, in however elliptical a form, are the inevitable mode of coming to agreement, and that to such a form his exceptions are reducible. 1 White v. Corlies, 46 N. Y. 467, H. & W. 7; Thruston v. Thornton, 1 Cush. (Mass.) 89; McDonald v. Bewick, 51 Mich. 79; Fitch v. Snedaker, 38 N. Y. 248, H. & W. 62. But the foregoing modes of offer and acceptance need explanation. tions. 1. The first is in English law applicable only to such Illustracontracts as are made under seal, for no promise, not under *seal, is binding unless the promisor obtains something [*13] from the promisee in return for his promise. This something, which may be an act, a forbearance, or a promise, is called consideration. The offer may take the form, I will promise you £50 if you will accept it,' or, I will accept £50 if you will promise it to me.' In either case the promise must be made under seal if it is to bind the promisor.1 Townson v. In the first case assent is needed to turn the offer of a promise into a contract: for a man cannot be forced to 87. accept a benefit. In the second case acceptance takes the form of a promise to which assent has been secured by the terms of the offer. 2. A man gets into a public omnibus at one end of Oxford Street and is carried to the other. The presence of the omnibus is a constant offer by its proprietors of such services upon certain terms; they offer an act for a promise; and the man who accepts these services promises by his acceptance to pay the fare at the end of the journey.2 3. A man who loses his dog offers by advertisement a reward of £5 to any one who will bring the dog safe home; he offers a promise for an act; and when X, knowing of the offer, brings the dog safe home the act is done and the promise becomes binding.3 4. A offers X to pay him a certain sum on a future day if X will promise to perform certain services for him before that day. When X makes the promise asked for he accepts the promise offered, and both parties are bound, the one to 1 Krell v. Codman, 154 Mass. 454; Williams v. Forbes, 114 Ill. 167. 2 Day v. Caton, 119 Mass. 513; Fogg v. Portsmouth Athenæum, 44 N. H. 115, H. & W. 10. 3 Reif v. Paige, 55 Wis. 496; Pierson v. Morch, 82 N. Y. 503. Difference between contracts on ex executory do the work, the other to allow him to do it and to pay for it.1 It will be observed that cases 2 and 3 differ from 4 in an important respect. In 2 and 3 the contract does not come into existence until one party to it has done all that he can ecuted and be required to do. It is performance on one side which considera- makes obligatory the promise of the other; the outstanding obligation is all on one side. In 4 each party is bound to some act or forbearance which, at the time of entering into *the contract, is future: there is an outstanding obligation on each side. tions. Leake, ed. 3. p. 533. Parke, B., in Foster v. Dawber, 6 Exch. 851. Chalmers, Goods Act. [*14] In case 1 the promisee alone is benefited: in cases 2 and 3 the promisor and promisee alike take benefit, but the promise does not come into existence until the promisor has obtained all that he is to get under the contract: in case 4 the benefits contemplated by the parties are expressed in their mutual promises. We may, if we please, call 1, 2, 3, unilateral, and 4 bilateral contracts.2 a Where, as in cases 2 and 3, it is the doing of the act which concludes the contract, then the act so done is called an executed or present consideration for the promise. Where a promise is given for a promise, each forming the consideration for the other, such a consideration is said to be executory or future. a The words executed and executory are used in three different senses in relation to contract, according to the substantive with which the adjective is joined. Executed consideration as opposed to executory means present as opposed to future, an act as opposed to a promise. Executed contract means a contract performed wholly on one side, while an executory contract is one which is either wholly unperformed or in which there remains something to be done on both sides. Executed contract of sale means a bargain and sale which has passed the property in the thing sold, while executory contracts of sale are contracts as opposed to conveyances, and create rights in personam to a fulfilment of their terms instead of rights in rem to an enjoyment of the property passed. 1 White v. Corlies, 46 N. Y. 467, H. & W. 7. 2 Langdell, Summary of Law of Cont. ss. 183-187. § 2. An offer or its acceptance or both may be made either by words or by conduct. tract may arise from From what has been said as to the possible forms of offer (2) Conand acceptance it will appear that conduct may take the place of written or spoken words in the making of con- conduct. tracts.1 If A asks X to work for him for hire, X may accept simply by doing the work, unless A has in his offer prescribed any form of acceptance. [*15] Or, again, if A allows X to work for him under such cir*cumstances that no reasonable man would suppose that X meant to do the work for nothing, A will be liable to pay for it. The doing of the work is the offer, the permission to do it, or the acquiescence in its being done, Paynter ▼. is the acceptance.2 Williams, Hart v. & On the same principle, if A sends goods to X's house ed. 3. p. 40. and X accepts or uses the goods, X will be liable on an implied contract to pay what the goods are worth. The offer is made by sending the goods, the acceptance by their use or consumption, which is in fact a promise to pay their price.3 A ordered of X a publication to be delivered in twentyfour monthly numbers. He received eight numbers and 166 Nothing is plainer than the proposition, that the distinction between express and implied contracts lies, not in the nature of the undertaking, but in the mode of proof." Somerville, J., in Montgomery v. Montgomery Water Works, 77 Ala. 248. "The term 'tacit contract,' suggested by Mr. Austin, describes a genuine agreement of this nature better than the phrase 'an implied contract'; for the latter expression is sometimes used to designate legal obligations, which, in fact, are not contracts at all, but are considered so only by legal fiction, for the sake of the remedy." Smith, J., in Bixby v. Moor, 51 N. H. 402, H. & W. 378. 2 Day v. Caton, 119 Mass. 513; Curry v. Curry, 114 Pa. St. 367; Hertzog v. Hertzog, 29 Pa. St. 465, H. & W. 1; Cicotte v. Church of St. Anne, 60 Mich. 552. 3 Indiana Mfg. Co. v. Hayes, 155 Pa. St. 160; Hobbs v. Massasoit Whip Co., 158 Mass. 194, H. & W. 24. C Mills, 15 M w. 87. |