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Corbin on Contracts

Copyright 2007, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

PART I FORMATION OF CONTRACTS

TOPIC A OFFER AND ACCEPTANCE

CHAPTER 3 ACCEPTANCE AND REJECTION OF OFFER

1-3 Corbin on Contracts § 3.6

§ 3.6 Knowledge of the Offer After Part Performance Already Rendered

It has been vigorously argued that, where a reward is offered in return for specified acts, it is necessary to a valid acceptance that the offeree should have knowledge of the offer during the whole time that the requested acts were being performed and that part performance without knowledge followed by a completion of performance with knowledge makes no contract. This view had been adopted by the American Law Institute in the original Restatement of Contracts.n1

Nevertheless, it is believed that the rule will not give satisfaction, and if it does not, there is no necessity that the courts shall follow it. If it is followed by the courts, then the offer is impossible of acceptance by the one who has rendered part performance without knowledge of the offer. It is likewise impossible of acceptance by anyone if the part performance already rendered cannot be repeated. The normal person who learns of an offer of reward after having already partly performed will proceed with the performance in reliance on the offer and with expectation of the reward. Thus, this individual has assented to the offer, has acted in reliance upon it, the entire benefit that the promisor promised to pay for has been received. The offeror does not prescribe the rendition of the entire service as the mode of expressing assent to his offer, but merely promises the reward as compensation for the entire service.

It may be that, if the offeree renders the first part performance with the expressed intention of rendering it as a gift to the promisor, a different result should be reached, but in the reward cases now being considered this is practically never the case. Often the part performance is rendered without any intention to make a gift to anybody and with the hope of a reward and the intention to claim it if one should be offered. When so many have believed that the promise should be enforceable by one who renders the entire service without knowledge of the offer, it seems quite unreasonable to refuse enforcement to one who renders only a part without such knowledge and completes the performance with intention to accept.

Even if the part performance rendered without knowledge is of such character that it can be repeated, it seems foolish to require the acceptor to repeat it in order to earn the reward. If A offers $1000 to anyone who will scale a wall and bring down a person threatened with death by fire, shall one who has already scaled the wall climb down and scale it again in order to earn the reward? If A offers a sum of money for the plowing of a field, shall B, who has already plowed part of it by mistake, plough that part over again when he learns of the offer? There seems to be no established rule of law that the entire performance by one party shall be consciously given in exchange for the promise of the other, although there is a rule that a promise is not enforceable unless the promisor gets substantial performance of that which the promisor has asked in return.

It should be borne in mind that preparation to perform is not identical with the requested performance. If one offers a reward for the return of a lost article, the fact that the party returning it had found it prior to the making of the offer, or prior to this party's knowledge of it, is immaterial. A contract is created by rendering the specific service requested (the return) with knowledge of the offer. The same result should be reached even though the part performance rendered without knowledge is a part of the very performance requested by the offeror.

The views advocated in this section have been accepted by the Restatement (Second) of Contracts. Its Section 51 provides:

''Unless the offeror manifests a contrary intention, an offeree who learns of an offer after he has rendered part of the performance requested by the offer may accept by completing the requested performance.''