This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
Agreement is usually reached by some form of offer on the one side and acceptance on the other, and thus it is often said that agreement can be reached only in this way.1 Agreement may possibly be reached in other ways. Pollock's illustration of a suggestion made by a third party and acquiesced in at the same time by the two adversary parties to the contract may be a correct example of an agreement which does not originate in offer and acceptance.2 Such a combination of facts, however, would be very rare. If it existed, the result would be questionable. If one party acquiesces in such proposition before the other and communicates such acquiescence to the other, such conduct would undoubtedly amount to an offer which originated with a third person, but which was adopted by the person who has acquiesced therein; and which offer is made to the adversary party. Even where each party acquiesced either at the same time that the other party acquiesced, or before he knew of such acquiescence, difficulties might be suggested which would make it difficult to treat such transaction as a contract. If neither knows that the other has acquiesced in the transaction when he' communicates his acceptance to such third party, it is difficult to see how either party is bound if such third party is not authorized to receive such notice of acceptance;3 while if such third party is the agent of one of the parties, the underlying supposition of fact disappears and we have the ordinary case of the contract in which one of the parties is represented in his dealings with the other by his authorized agent.
1 Arkansas. Porter v. Gossell, 112 Ark. 380, 166 S. W. 533.
Mississippi. Yazoo & Miss. Valley Railroad Co. v. Jones, 114 Miss. 787, 75 So. 550; Couret v. Conner, 118 Miss. 374, 79 So. 230.
Montana. State, ex rel., v. Board of State Prison Commissioners, 37 Mont. 378, 96 Ac. 736.
New Hampshire. Busher v. New York Life Ins. Co., 72 N. H. 551, 58 Atl. 41.
Oklahoma. Wm. J. Lemp Brewing Co. v. Secor, 21 Ok]a. 537, 96 Ac. 636. See the cases cited in Sec. 70.
2 Wald's Pollock on Contracts, 5, 6.
In any event the great majority of contracts consist of enforceable agreements which originate in offer and acceptance, though in many cases an offer and acceptance which are not consciously formulated by the parties, and which must be deduced artificially from prolonged negotiations, but which really form both logically and legally the method of reaching the agreement. For practical purposes, therefore, agreement in contract law may be considered as created solely by offer and acceptance.