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