(d)  Problem cases for a promissory analysis of offer and acceptance

given, the promise of the buyer to pay and performance will not necessarily be simultaneous. The buyer who presents goods for payment at a till is at that instant making a promise to pay for them. The cashier accepts the buyer’s offer by taking the goods from the customer and ringing them up, thereby making a reciprocal promise to deliver the goods to the buyer. At that point, the contract is concluded. Only then does the buyer fulfil its promise by paying for the goods, handing over cash or offering another method of payment, and only then does the seller fulfil its promise of delivery, when the cashier hands the goods back to the customer. So, even in cases of apparent simultaneous formation and performance, on closer examination there may well be promises to perform which predate actual performance, even if only by a few seconds. Secondly, even if payment is in fact contemporaneous with the buyer’s offer (because, for instance, the buyer hands over both the goods and a cash payment together), though it seems to be redundant to adopt a promissory analysis in such a case, no great conceptual harm is done by accepting that performance may occur contemporaneously with the promise to perform. Such transactions are no doubt anomalous, but their status as an anomaly need not be seen as undermining a general theory which continues to provide a satisfactory explanation for the field of obligations overall. Lastly, even in cases where performance occurs simultaneously with formation, there may be duties other than the primary duty of performance which are incurred under the contract. Thus, if it transpires that payment has not properly been made (for instance, because forged currency has been given, or a cheque tendered in payment does not clear) or that the goods delivered are defective, duties to correct the defective performance may be enforced, and such duties can be referred to as express or implied promises incumbent upon the parties and enforceable at a later point in time (when the defective performance is discovered). This last point is a somewhat weaker one, however, because it may be more realistic (as suggested later in this chapter) to see implied terms as stemming from legal rules and not any imagined promises of the parties.

If none of these arguments concerning simultaneous transactions are accepted, then the conclusion must be either that such transactions are not contracts (an undesirable one, it is suggested, given the universal view that such transactions are contracts), or that promising is not the only way of contracting. The latter view might, for instance, lead to the conclusion that both promising and also other conduct demonstrating an intention to be bound to an obligation are equally valid methods of forming valid contracts. Such a view would not represent, as some might claim, a

fundamental attack on the idea of promise as a normative act, but merely a shift in focus from the idea of promise to that of behaviour demonstrative of obligatory intent, of which promise would be one (and perhaps the clearest) example.

(e)  Conceiving of offers as binding

In the Common law and mixed legal systems, the default status of an offer is that it does not give rise to any binding obligations, and may be withdrawn at any time before acceptance.119 It may be possible to make the offer binding, but this is an exceptional position. By contrast, in German law, once an offer has been issued it is binding in the sense that it cannot be withdrawn, unless the power to do so has been reserved by the offeror, during the period of time for which the offeror might expect to receive a reply in ordinary circumstances.120 Why is it that offers are seen as binding in Germany? Like so many other of the BGB provisions giving a legal effect to unilateral acts, this provision owes its origins to the position favoured by Franz von Kübel, editor of the draft contract provisions of the original text of the BGB. Von Kübel headed his submission to the first drafting Commission of the BGB on the topic of contractual offers with the words ‘The unilateral promise as grounding the obligation to keep one’s word (contractual offer)’,121 thereby making his views

119Though the law of the mixed legal system of Quebec is not a subject of study of this work, it is interesting that the Quebec Civil Code adopts a somewhat different default position in relation to offers than that taken in the mixed legal systems studied in this work. Article 1396 of the Code provides that ‘[a]n offer to contract made to a determinate person constitutes a promise to enter into the proposed contract from the moment that the offeree clearly indicates to the offeror that he intends to consider the offer and reply to it within a reasonable time or within the time stated therein’. Quebec law thus conceives of the following stages in the contract formation process: (1) the offer is issued (it may still be revoked at this stage); (2) the offeree indicates he is considering the offer – the offer is now a ‘promise’ to contract (and thus cannot be withdrawn), this ‘promise’ amounting to an option to contract (the ‘option’ label is in fact used later in Article 1396 to describe the nature of the offeree’s right); (3) the promise to contract is accepted, this creating a contract.

120§§145–7 BGB. In the case of an offer made to a party who is present at the time the offer is made, it must be accepted immediately or it falls (§147(1)); where a time limit for acceptance is specified, that limit applies (§148).The Swiss Code of Obligations applies similar rules (see Arts. 3–5), as does Austrian Law (see §862 AGBG).

121My translation of von Kübel’s German text, which read: ‘Das einseitige Versprechen als Grund der Verpflichtung zum Worthalten (Vertragsantrag)’ (von Kübel, in Schubert, Die Vorlagen der Redaktoren, pp. 1145 f). To somewhat similar effect is the following view of the Belgian Cour de Cassation: ‘The binding character of an offer … is founded upon

on the desired nature and effect of an offer quite clear. This automatically binding effect may at first seem strange to non-civilian lawyers, as it is a position not maintained even in Scots Law, with its obligation of unilateral promise. In Scotland (as is discussed more fully later) an offeror must expressly promise to keep an offer open for a specified time before it can be held to be irrevocable, demonstrating the Scots law view that a simple offer of itself discloses no intention of the offeror unilaterally to be bound, not even to his keeping the offer on the table for acceptance. The DCFR position is somewhat similar to the Scottish approach.122 The German position does not, of course, bind the offeror to the terms of a contract – for that, an acceptance is required – it only binds him to keeping the offer on the table for the other party to accept or not as it sees fit. The offeror is held to have committed himself unconditionally to the negotiations, though not the contract proposed (the condition for that commitment being the acceptance of the offeree). As such, any unilateral binding effect can be described as procedural rather than substantive.

As to a related matter, a waiver of the need for an acceptance, it should be appreciated that the fact that a legal system may hold an offeror to be entitled to waive the need for communication of an acceptance123 does not turn the offer into a sort of quasi-unilateral promise, binding on the offeror without acceptance. That is so because waiver of an acceptance does not negate the need for acceptance, merely the need for it to be communicated. Were it otherwise, an offeror could, by waiving the need for communication of the acceptance, bind an unwilling offeree to the contract. Waiver of acceptance most commonly occurs in cases of parties involved in an ongoing, prolonged relationship. Thus, the window cleaner, who contracts on a repeated basis to clean a householder’s windows once a week while he is at work, will be taken to have waived the need for an acceptance to be communicated to his standing offer to clean the windows every week. In such a case, the householder’s acceptance, though not communicated after the initial occasion of cleaning, will be deemed to be manifested on each subsequent occasion by his conduct in tacitly allowing the cleaner access to the property to carry out the work. Proof that an intention to accept has been manifested in some way, though not communicated, may be disputed in some cases. Moreover, the further

an undertaking resulting from the unilateral will of the person making the offer’ (9 May 1980, Pas. 1980 I 1127), though the word promise is not used in the court’s reasoning.

122DCFR Art. 4:202 (discussed below, at p. 227).

123As is the case in, for instance, England, Scotland and Germany.