The principles stated in the last section find application where an acceptance is delayed beyond the time allowed by the offeror, or beyond a reasonable time allowed by law, if no time was fixed in the offer. It has been held 1 that if an acceptance is delayed slightly beyond a reasonable time, and the offeror, when he receives the acceptance does not promptly state that he refuses to be bound because of the delay, a contract exists. On the other hand, the Supreme Court of Iowa has said: "We have to inquire whether an acceptance after the time limited, or, in the absence of an express limitation, after the lapse of a reasonable time, imposes upon the person making the offer any obligation. The theory of the Court below seems to have been that it does. But in our opinion it does not. The offer, unless sooner withdrawn, stands during the time limited; or, if there is no express limitation, during a reasonable time. Until the end of that time the offer is regarded as being constantly repeated. After that there is no offer, and, properly considered, nothing to withdraw. The time having expired, there is nothing which the acceptor can do to revive the offer, or produce an extension of time." 2
1 Phillips v. Moor, 71 Me. 78.
2Ferrier v. Storer, 63 Ia. 484, 487, 19 N. W. 288, SO Am. Rep. 752. To the same effect is Maclay v. Harvey, 90 111. 625, 32 Am. Rep. 35.
A French writer who has dealt with the problem says:
[The offeror when he has received an acceptance which is too late]
"would act prudently and fairly if be informed his correspondent that he had given up the transaction and was no longer disposed to bind himself by the agreement in regard to which he had at first taken the initiative. Otherwise, indeed, his silence might be considered as importing tacit assent to the proposition ex novo contained in the
Certainly where the offer fixes a time within which it must be accepted this reasoning is unanswerable, since the offeree must know that his acceptance is not within the terms of the offer. Where, however, the offer contains no such limitation, the limit of a reasonable time imposed by law is one that no one can fix beforehand with precision. Therefore it has been forcibly said that if the acceptor "makes known his acceptance of it [the offer] to the party making it, within any period which he could fairly have supposed to be reasonable, good faith requires the maker if he intends to retract on account of the delay, to make known that intention promptly." 3 More exactly stated from an analytical standpoint the last clause should read "if he does not wish his silence to be construed as an acceptance of the counter-offer contained in the late acceptance." 4