Sec. 29. What Constitutes Acceptance

Acceptance is a definite manifestation of a purpose to be bound according to the terms of the offer. Therefore there is no acceptance where there is doubt or difference expressed or except in unusual cases where there is mere silence. Acceptance may be by promise or act whichever is contemplated by the offer.

33. Kempner v. Cohn, 47 Ark. 519.

We have seen in the discussion of the offer that the acceptance completes the contract and is therefore irrevocable; that it must be in the terms of the offer; and a few questions only remain for our discussion.

Sec. 30. Acceptance By Promise Or Act

The acceptance must be in manner and form as contemplated by the offer which may be by promise or by act.

One may accept an offer by a promise to do what the offer calls for if that is the manner of acceptance contemplated by the offer, but if the offer calls for the doing of an act by way of acceptance the offer could not be accepted by promising to do the act in the future. It would be no objection in that case that the offeree signified that he did accept; and in all cases acceptance calls for notification to the offeror that the offeree has accepted. A few examples will elucidate this subject:

Example 24. A in June makes an offer to B consisting in a promise by A to sell goods for the fall trade to be made up on B's order. This is an offer clearly to be accepted by B's promise to buy such goods. The contract when accepted, consists in mutual promises.34

Example 25. A offers a public reward to any person who will furnish him certain information. B furnishes that information. In this case B accepts the offer by doing an act.35

34. Trademen's Nat. Bk. v. Curtis, 167 N. Y. 194, 52 L. R. A. 430.

Example 26. A, being about to go to Chicago to buy goods at wholesale, takes with him a letter of credit from B, promising to guarantee A's credit with anyone of whom A purchases the goods up to a certain amount and over a prescribed period. M sells A goods on the strength of this letter and M accepts this offer by selling the goods, as such is the reasonable interpretation of the letter, but M must notify B within a reasonable time that he has accepted the letter.36

Example 27. A sends an order by mail to the M. Company, ordering goods as per catalogue prices. The Company accepts this offer by shipping the goods, but must notify A, so that he may know of the acceptance.37

Sec. 31. Communication Of Acceptance

When complete the acceptance must be communicated to the offeror or his agent in that behalf, except in cases in which the offer evidently contemplates communication by an act without previous communication. If a contract is made by mail or telegraph the offer is not complete until it reaches the sendee or his agent in that behalf, but the acceptance is complete when delivered to the post office or telegraph company, unless the offer stipulates otherwise; provided the mail or telegraph in the specific case is the proper method of communication, as expressly or impliedly authorized by the offer.

(a) Communication of offer.

We have discussed this principle in the previous section.

35. Elkins v. Bd. of County Com'rs, 86 Kan. 305, 120 Pac. 542.

36. Wm. Deering & Co. v. Mortell, 21 S. D. 159, no N. W. 86.

37. Main v. Tracy, 76 Ark. 371.

(b) Communication to agent.

The communication of the acceptance to an agent of the offeror is at that moment a communication to the offeror, whether in fact the offeror ever receives it or not, but such agent would have to have actual or apparent authority to receive the offer. The fact that he was an agent of the offeror for some purposes would not necessarily carry. with it authority to receive the acceptance of any offer. See generally, the subject of Agency.

(c) Communication by mail or telegraph.

It is clearly established by the cases that if the acceptance is properly made either by mail or telegraph, the contract is complete when the acceptance is delivered to the postoffice or telegraph company, properly addressed and paid for, and that subsequent delay or miscarriage will not defeat the contract. This has been supported on various theories, a favorite one being that the post-office or telegraph company is the agent of the offeror to receive the acceptance, which according to the principles stated in the paragraph next above, would make the contract complete at that time. According to this rule, an attempted revocation of the acceptance after so made, is ineffectual even if it actually reaches the offeror before the acceptance reaches him.38

(d) When acceptance by mail or telegraph authorised.

The difficult question is to determine when the acceptance is authorized to be sent by mail or telegraph. The offer may of course be explicit, as "wire reply," or "reply by return mail," but if nothing is said, what is the rule? The authorities differ. It has been said that if there is nothing in the case to the contrary, an offer sent by mail is an authorization to the sendee to use only the mail in reply; and if the offer is sent by wire that is an authorization to the sendee to use only the telegraph in reply.39 But, other authorities hold that an offer by mail may be accepted by telegram and vice versa, and that the acceptance is complete when put in course of transmission.40

38. Brauer v. Shaw, 168 Mass. 198.

(e) Acceptance may be by any method if it actually reaches the offeror in time.

No matter what mode of communication is employed by the offeree, it is clearly good, if it reaches the offeror provided also it reaches him before the offer has lapsed. Thus if A mails an offer to B and asks for a reply by mail, and B wires his reply, the contract is not complete at the time of sending the message, but if the reply goes to A in due season, the contract is complete when it reaches A, but he takes the risk that it will reach A and reach him in time.41

Sec. 32. Silence As Acceptance

Mere silence cannot be construed generally as acceptance, nor can one claim he has accepted, where he has merely remained silent, but one's conduct in not replying where under the circumstances, he would be expected to reply may debar him from saying he did not assent.

39. Lucas v. W. U. T. Co., 6 L. R. A. new series, 1016.

40. Farmers Produce Co. v. Schreiner (Okla.), L. R. A. 1916 A. 1297.

41. Lucas v. W. U. T. Co., supra.

Suppose an offer is made to one, and he remains silent? Does his lack of reply signify acceptance?

It might be contended that it did or did not either from the offeror or offeree's standpoint.

The offeror cannot claim acceptance by the offeree merely because the offeree does not reply. One cannot impose a duty on another to speak.42 But, there are cases in which from previous dealings, an offeree's refusal to reject may be a circumstance from which the offeror may infer an assent.

The offeree cannot claim he has assented where he did not speak, or at least show by his conduct, known to the offeror, that he accepts.43

42. Hobbs v. Massasoit Whip Co., 158 Mass. 194.

43. Thurber v. Smith, 25 R. I. 60,54 Atl. 790.