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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 § 3.17

§ 3.17 Offer of an ''Act'' for a Promise

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This section treats two somewhat different conceptual constructs. The first is a promise to pay for a benefit received in the past. This topic is sometimes discussed under the headings of ''moral obligation,'' ''past consideration,'' or ''promissory restitution.'' In this treatise the topic is treated in depth in §§ 210 through 239 below. The main issue surrounding such promises involves the doctrine of consideration. Here we look at such promises from the framework of offer and acceptance. Second, this section considers other situations where the offeror tenders a performance and requests a promise in exchange. This second kind of situation has sometimes been called a ''reverse unilateral'' contract.n1 The two constructs have more in common than is commonly noticed.

In most unilateral contracts, the promise is made by the one making the offer, the acceptance of which is by action or forbearance on the part of the offeree, as in the cases just discussed in § 3.16 above. In some cases, however, the only binding promise is made by the offeree, the consideration for that promise being service rendered by the offeror or property transferred by the offeror. An offer of this kind has been described, somewhat unhappily, as the offer of an act for a promise. This is not so unhappy a description if the offer consists of services actually rendered for compensation to be paid by the offeree. The acceptance of the benefit of the services is a promise to pay for them, if at the time of accepting the benefit the offeree has a reasonable opportunity to reject the benefit and knows that compensation is expected.n2 In some cases, at the time of accepting the benefit of the services, the offeree makes an express promise to pay for them. Whether the offeree's promise is express or implied, the contract then being made is unilateral if no return promise by the offeror can be found.n3

In cases of this sort, a defendant who has been enriched by the plaintiff's services, knowing that the plaintiff rendered them with expectation of payment, may be held bound to pay reasonable compensation on a quasi-contractual theory.n4 However, it is just as easy to find a promise to pay such compensation by implication in fact as it is to hold that the law creates such a duty without regard to assent. If the same result is reached by either process, it is unnecessary for the court to determine which one is adopted and applied.n5

At times, it is impossible to tell whether the court found a bilateral contract, a unilateral contract, or simply found that justice dictated that the claimant be compensated by a quasi-contractual recovery.n6

A real estate broker may, without request on the part of the principal, find and introduce a willing and able purchaser, informing the principal that a commission will be expected if a sale is made. The broker's work is then all done and the broker has made no promise. No doubt principals in this kind of situation can make sales to the purchasers introduced by the brokers without being obligated to pay commissions. This is because the services have been thrust upon them. They are privileged not to accept the offers and they are not disabled from making sales without accepting the offers. Nevertheless, each such principal has the power to accept the offer and to thereby create a binding contractual obligation, this power to be exercised by making the sale and by expressing assent to the broker's proposal.n7

The case is not substantially different where the broker has rendered the service at the request of one who assumed without authority to act as the agent of the principal, although in holding the principal bound by the acceptance of the services the courts will now use the language of agency. They will speak of the principal being bound by ''ratification.'' But this ratification is identical with the acceptance of an offer, and on such ratification, the resulting contract is unilateral exactly as above. The broker has made no promise and the services are all done before the principal makes any promise. This may, like the cases in the previous paragraph, be a case of past consideration, but if so we must make the best of it.

There are many instances of domestic or business services that have been rendered by one expecting payment for them, as the recipient knows, but by one who has made no promise to render them.n8 The rendition of such services is an offer. A promise to pay for them is implied from the acceptance of the services by the offeree.n9 When such services are rendered by a close relative or close friend, or by one who lives in ordinary family relations with the defendant,n10 the court often finds that the defendant was reasonable in thinking that they were rendered without expectation of pay and that an implication of a promise to pay is not justified.n11 This issue has been litigated in numberless cases. If an implied promise to pay is found to have been made,n12 the contract is nearly always unilateral. In many of them, the legal issues are complicated by the existence of a sexual relationship between the parties.n13 Questions of public policy then enter into the equation. There may, in some cases, have been a promise by the one rendering the service to continue to render it for some future period. In these, the contract is bilateral.

A unilateral contract is made if one proposes the transfer of a property interest in a specific chattel, expressly excluding any warranty and all possible collateral promises, in return for the offeree's promise to pay a price, and the offeree duly accepts. Thus, if A sends a book to B, offering to sell it at a price, and B keeps the book, either expressly or impliedly promising to pay the price, a contract is consummated by B's acceptance.n14 It is a unilateral contract, unless we can find by inference a tacit promise by A of some performance in the future. No doubt such tacit promises are generally inferable. A dealer in used cars may offer to sell one to X saying: ''This car is yours as it stands, as is, without warranty or other promise, in return for your promise to pay me $3000 in thirty days.'' If X makes the requested promise the contract is made, and it is unilateral in character.n15 It is an executed sale on credit without warranty. The consideration for X's promise is the property in the car. The offer is so worded as to empower X to transfer the property by X's own act of acceptance, the very same act by which X becomes bound to pay the price. The consideration for X's promise to pay is not past; it is the simultaneous transfer of ownership, that takes place with the making of the promise.

A property interest in a party wall can be offered by actually building it, and a tacit promise to pay for it may be inferred from silence with knowledge that it is being built.n16

In Autographic Register Co. v. Philip Hano Co., n17 in resolving a dispute as to a patent license, the licensee sent its check for royalties under protest, specifying that retention of the money ''would constitute an undertaking to repay'' in the event of an affirmance on appeal of another case. The licensor cashed the check with no communication to the licensee. This ''act'' was held to be an acceptance and a promise to repay. The court says nothing of any promise by the licensee. In fact, the delivery of a check with contractual language contained thereon is one of the more frequent kinds of cases where the offeror offers a performance and requests a promise,n18 or frequently, a discharge.n19 As a common law proposition, it matters not that the offeree takes the check but overtly indicates that the offered terms are not accepted.n20 The exercise of dominion over offered property without an intent to accept is wrongful and the offeree will be estopped from asserting the status of a wrongdoer.n21 Under some readings of U.C.C. § 1-207, the payee may preserve its rights by indicating that the tendered check is accepted under protest.n22 Certification of the check by the payee is an exercise of dominion over it and should have the same effect as the negotiation of it.n23 Mere retention of the check is not an exercise of dominion over it and should not result in the acceptance of its terms.n24

Legal Topics:

For related research and practice materials, see the following legal topics:

Real Property LawBrokersGeneral OverviewContracts LawSales of GoodsForm, Formation & ReadjustmentFormationOffer & AcceptanceContracts LawConsiderationEnforcement of PromisesMoral ObligationContracts LawConsiderationEnforcement of PromisesGeneral OverviewContracts LawConsiderationEnforcement of PromisesForbearanceContracts LawTypes of ContractsUnilateral ContractsGeneral Overview

FOOTNOTES:

(n1)Footnote 1. See Restatement (Second) of Contracts § 55.

(n2)Footnote 2. See Restatement (Second) of Contracts § 69(1)(a).

(n3)Footnote 3. Cases enforcing such an express or implied promise are:

Kan. -In Miller v. International Harvester Co., 179 Kan. 711, 298 P.2d 279 (1956) , the plaintiff disclosed an idea for use in a mechanical device in return for the defendant's promise to pay for it if use should be made of it. The defendant's promise was enforceable for payment of the reasonable value, conditional only on the actual use of the idea.

Mass. - Anisgard v. Bray, 11 Mass.App.Ct. 726, 419 N.E.2d 315 (1981) . Plaintiff, a tennis pro, conceived of a tennis facility in the Berkshires, found a site, for which he negotiated a tentative long-term lease, had preliminary plans drawn up and got tentative financing. He revealed the entire situation to the defendants, one of whom was an experienced developer with good financial experience. A tentative agreement was made among the plaintiff and the defendants, but final details were not agreed upon. The defendants proceeded with the project using plaintiff's ideas and entered into the lease that plaintiff had negotiated and picked up the financing that plaintiff had arranged. It was held that the defendants had impliedly agreed to pay for the plaintiff's expenses and the reasonable value of the time plaintiff had spent on the project.

N.Y. - Gellert v. Dick, 277 N.Y. 123, 13 N.E.2d 603 (1938) .

In Grombach Productions, Inc. v. Waring, 293 N.Y. 609, 59 N.E.2d 425 (1944) , reh'g denied, 294 N.Y. 697, 60 N.E.2d 846 , the plaintiff submitted an ''idea'' by telephone, unsolicited, and alleged that the defendant later used it in a radio program. He also alleged a usage or custom to pay for such ideas if used. These allegations, if proved, would be evidential of an acceptance of an offer and a promise implied in fact to pay reasonable value. The jury found that there was no such promise. Had the jury found such a promise, there would have been a unilateral contract-an offer of an ''idea'' by actually communicating it, accepted by the overt act of using the idea with knowledge of expectation of payment.

In Anderson v. Distler, 173 Misc. 261, 17 N.Y.S.2d 674 (1940) , although the defendant acted to his profit on information volunteered by the plaintiff, the latter was not justified in understanding that there was any promise to pay.

Pa. - Anderson v. Best, 176 Pa. 498, 35 A. 194 (1896) . In Kahn v. O'Brien Machinery Co., 391 Pa. 124, 137 A.2d 291 (1958) , certain brokers for defendant solicited the aid of other brokers in obtaining a purchaser. The plaintiff found a prospective buyer and wrote to the defendant's brokers naming him and saying that in case a sale resulted he would expect a commission of 21/2 percent. Such a sale finally resulted, although the plaintiff was not present in the concluding negotiations. The plaintiff was given judgment against the defendant's brokers. This is a case in which the plaintiff offered his services on stated terms. The defendant's brokers accepted and profited by those services with knowledge of the terms, thereby impliedly promising to split the commission.

S.C. - Ferguson v. Harris, 39 S.C. 323, 17 S.E. 782 (1893) .

S.D. - Edson v. Poppe, 24 S.D. 466, 124 N.W. 441 (1910) .

Vt. - Spencer v. Potter's Estate, 85 Vt. 1, 80 A. 821 (1911) ; Boothe v. Fitzpatrick, 36 Vt. 681 (1864) .

Wash. - Muir v. Kane, 55 Wash. 131, 104 P. 153 (1909) ; Jones v. Brisbin, 41 Wash.2d 167, 247 P.2d 891 (1952) , where an architect was consulted and was permitted to draw complete plans and specifications, these being received and retained, although the building was not built. The court held that there was a contract to pay reasonable compensation. ''They tacitly approved and actively accepted the architect's labors.''

See other illustrations under §§ 3.8 and 3.20.

The rule here stated is illustrated by Present v. Mangus, 122 So. 2d 585 (Fla. App. 1960), although the decision is erroneous. The decision was quashed, 135 So. 2d 417. See the critical note under § 132.

In Ballard v. Tingue Mills, Inc., 128 F.Supp. 683 (D.Conn.1954) , the plaintiff, at the instigation of a third party who acted without authority, rendered services as an agent in procuring a government contract for the defendant. The latter ''never expressly approved or disapproved''; but it knew that the plaintiff expected a commission and it received the benefit of the plaintiff's work. No valid contract was made for reasons of illegality. See § 1450.

In Stevens v. Continental Can Co., 308 F.2d 100 (6th Cir.1962) , cert. denied, 374 U.S. 810 , the plaintiff disclosed to defendant, with expectation of compensation in case of its use, a certain design for decoration of paper plates and cups, asserted by her to be new and original. The defendant later made use of the design, but the court held that she had no right to compensation because the design was not new, having been used by others prior to her disclosure. The court said that if the design had been new and original, as represented, the law ''would imply a contract or promise to pay by the one obtaining the information.''

Other cases have refused to enforce such a promise on the ground that the consideration is wholly past.

See:

Ariz. - Wulff v. Lindsay, 8 Ariz. 168, 71 P. 963 (1903) .

N.J. - Bagnole v. Madden, 76 N.J.L. 255, 69 A. 967 (1908) ; Sharp v. Hoopes, 74 N.J.L. 191, 64 A. 989 (1906) .

N.Y. - Gellert v. Dick, supra , dissenting opinion.

Ohio - Warner & Co. v. Brua, 33 Ohio App. 84, 168 N.E. 571 (1929) .

The reasoning in this section, as to a unilateral contract in which the only promise is made by the offeree has been criticized by Samuel J. Stoljar, ''The Ambiguity of Promise,'' 47 Northwestern U.L.Rev. 1 (1952). His criticism is very effectively answered by George W. Goble, ''The Non-Promissory Offer,'' 48 Northwestern U.L.Rev. 590 (1953).

(n4)Footnote 4.

U.S. - Matarese v. Moore-McCormack Lines, Inc., 158 F.2d 631, 170 A.L.R. 440 (2d Cir.1946) .

Ind. - Ft. Wayne, C. & L. R. Co. v. Haberkorn, 15 Ind. App. 479, 44 N.E. 322 (1896) , later appeal 22 Ind.App. 531, 53 N.E. 254 .

Mass. - Burton v. Burton Stock-Car Co., 171 Mass. 437, 50 N.E. 1029 (1898) .

In Marr v. Marr, 319 S.W.2d 920 (Mo.App.1959) , the court held that the jury was justified in finding an implied promise to pay for rock and gravel used for paving, even if no request by the defendant was shown, ''if (1) plaintiffs delivered rock to defendant, (2) if defendant accepted and received same, and (3) if defendant was benefitted thereby,'' there being no suggestion that it was delivered as a gift.

The case of Desny v. Wilder, 46 Cal.2d 715, 299 P.2d 257 (1956) is an excellent illustration of this section, with a long discussion of the differences between express contracts and contracts that are ''implied in fact'' or ''implied in law'' (quasi contracts). The plaintiff submitted to the defendant an idea for a film script, with a synopsis, the latter having knowledge that the plaintiff expected compensation if the idea and synopsis were used; and the defendant made use of them. On these facts, as alleged, it was error to grant a summary judgment for defendant. The jury might find an implied promise by defendant to pay reasonable value. The rule of the case has been synthesized as follows: ''plaintiff must show: that he or she prepared the work; that he or she disclosed the work to an offeree for sale; that under all the circumstances attending disclosure it can be concluded that the offeree voluntarily accepted the disclosure knowing the conditions on which it was tendered (i.e., the offeree must have the opportunity to reject the attempted disclosure if the conditions were unacceptable); and the reasonable value of the work.'' Klekas v. EMI Films, Inc., 150 Cal.App.3d 1102, 198 Cal.Rptr. 296 (1984) . See also § 1.23; § 230; § 234; § 561; § 567.

(n5)Footnote 5. Frequently, it is unclear which theory the court is applying.

Alaska - Sparks v. Gustafson, 750 P.2d 338 (Alaska 1988) . Plaintiff spent about five hours a day over a two year period managing defendant's real property in Nome. There was a close friendship between the plaintiff and the deceased owner. Despite the close friendship, the court indicated that the kind of services rendered were of the kind that ordinarily would be rendered with the expectation of payment. Apparently the court decided that whatever the plaintiff's intent at the time services were rendered, plaintiff should be paid.

(n6)Footnote 6. A typical case is Wilhoite v. Beck, 141 Ind.App. 543, 230 N.E.2d 616 (1967) , where the language of the court and the sources it quotes veer from bilateral contract analysis to quasi-contractual analysis and back again.

In Robert Trent Jones, Inc. v. Canter, 19 Mass.App.Ct. 321, 474 N.E.2d 560 (1985) , plaintiff designed a golf course for a developer and offered a deal under which it would receive only $3,000 for its ''route plan'' if the design were not used. Instead of signing and returning the proposed contract, the developers sent $3,000 with a notice that they were using someone else's design. At trial, it was established that the design used was ''substantially identical'' to the design submitted by plaintiff. The court said it was unnecessary to decide whether the facts created an implied contract or a quasi-contractual obligation. Clearly, the developers manifested no intent to contract, merely an intent to utilize the plaintiff's design without paying for it. On this kind of facts, quasi-contractual obligations are created. As a remedial alternative, the plaintiff can allege an implied in fact contract and estop the defendant from claiming that its conduct was wrongful when it could have been consistent with an acceptance of the offer. See § 3.18 below.

(n7)Footnote 7. Worner Agency, Inc. v. Doyle, 133 Ill.App.3d 850, 88 Ill.Dec. 855, 479 N.E.2d 468 (1985) , the defendant promised to pay a finder's fee to the plaintiff who had already presented a ''find.''

This contract may be implied, as well as express. ''Clearly, under the pleadings, the plaintiff in error made a case of implied contract; and whether the property had been previously listed with the plaintiffs in error or not, and even though they tendered a prospective purchaser without any solicitation by, or contract with, Ms. Bullis, yet, if she accepted their tendered purchaser under circumstances which implied an agreement to pay therefor, she would be liable. A contract implied in fact is one in which, under the circumstances, the acts of the parties are such as to indicate according to the ordinary course of dealing and the common understanding of men a mutual intention to contract, as where one accepts the tendered service of another under circumstances justifying the inference that such other expected to be paid for such services. Of course, in implied contracts as well as express contracts there must be shown the element of mutual agreement. But the only difference is that such agreement is expressly stated, in the one instance, and is inferred from the circumstances, in the other.'' Marr-Piper Co. v. Bullis, 1 S.W.2d 572 (Tex.Com.App.1928) .

A similar agency case is Suter v. Farmers' Fertilizer Co., 100 Ohio St. 403, 126 N.E. 304 (1919) , where the plaintiff, though apparently not employed by the defendant, negotiated on its behalf a contract to sell to the Aetna Explosives Company 600 tons of acid per month for twelve months at $27 per ton. The defendant ratified this contract and promised to pay a commission of one percent to the broker. If this promise is regarded as being made to the broker himself for the broker's then accepted service, the contract is unilateral. It is otherwise, however, if the defendant's promise is regarded as made to the Aetna Company, for the broker's benefit, in which case the consideration moves from the Aetna Company and the broker is a third party beneficiary.

More satisfactory in reasoning is Herman v. Stern, 419 Pa. 272, 213 A.2d 594 (1965) , where plaintiff realtor, unasked by lessor, brought to the defendant lessor a proposed lease signed by a potential lessee. The lease contained promises by lessor to pay plaintiff a percentage of the rental as a commission and, if lessee purchased the premises, to pay plaintiff a percentage of the sales price. Lessor signed the document. Thereafter the lessee purchased the premises. The court affirmed the trial court's judgment for the plaintiff on the pleadings. The defendant had accepted the plaintiff's unilateral act of performance by signing the lease and thereby became bound by its terms. This treatise concurs in this reasoning, but because defendant claimed the sale commission clause had been left in the document by error, a trial should have been had on whether the writing should have been reformed, provided that the claim for reformation had been raised in timely fashion.

See also:

N.Y. - Gellert v. Dick, 277 N.Y. 123, 13 N.E.2d 603 (1938) .

Warner & Co. v. Brua, 33 Ohio App. 84, 168 N.E. 571 (1929) , is contra to the text above. An unauthorized broker presented to the defendant owner a prepared contract for the sale of his land, already signed by the purchaser, including a written promise to pay the broker's commission just above the blank line for the owner's signature. The owner signed on that line, and the sale was thus consummated. The court held that the broker's service was completed before the owner made any promise to pay and that such past consideration would not support the promise. It is believed that the reasoning ought not to be supported.

In National City Bank v. Graham, 105 Ga.App. 498, 125 S.E.2d 223 (1962) , a broker informed the defendant that certain property was for sale and offered his services in effecting a purchase. The defendant made no reply, but made its own offer direct to the owner of the property. Its offer was accepted by the owner. On these facts, the broker was not entitled to compensation by the purchaser. It did not make use of the broker's services and made no promise to pay for them. Observe that here the broker did not render the services for which a commission would be expected. He merely asked the defendant to employ him. The ''information'' that he gave was not an ''act'' for which he expected compensation. See also § 2.30.

(n8)Footnote 8. In Graham v. Oman, 358 Mass. 369, 264 N.E.2d 691 (1970) , the plaintiff broker arranged for the sale of land to the defendant and was paid a commission by the seller. She was told by the buyer that if the land could be rezoned and a shopping center would be put in and ''an arrangement might be worked out'' whereby she ''would be the exclusive broker.'' She helped to arrange for the rezoning and spent substantial time calling prospective tenants for the center. The defendant then entered into an exclusive brokerage agreement with another broker. The services she rendered were a benefit to the defendant in the reasonable value of $4,000. The defendant knew that plaintiff expected to be compensated through the expected brokerage contract that was never entered into. The court held that no cause of action existed, citing this treatise and the Restatement, both of which squarely oppose the result reached. Because the contract that the parties contemplated never came into being, the plaintiff was entitled to the reasonable value of her services. Restatement (Second) of Contracts § 69(a).

(n9)Footnote 9.

Mass. - Therrien v. LeBlanc, 282 Mass. 328, 185 N.E. 15 (1933) , is an example.

(n10)Footnote 10. On the question of what degree of relationship is required for a person to be deemed a close relative, and what constitutes a de facto family relationship, consult Wilhoite v. Beck, supra , and Schanz v. Estate of Terry, 504 S.W.2d 653, 92 A.L.R.3d 719 (Mo.App.1974) .

(n11)Footnote 11.

Ala. - Worley v. Worley, 388 So.2d 502 (Ala.1980) .

Mo. - Sturgeon v. Estate of Wideman, 608 S.W.2d 140 (Mo.App.1980) , appeal after remand, 631 S.W.2d 55 .

N.Y. - In re Estate of Argersinger, 168 A.D.2d 757, 564 N.Y.S.2d 214 (1990) .

W.Va. - In re Fox's Estate, 131 W.Va. 429, 48 S.E.2d 1, 7 A.L.R.2d 1 (1948) .

(n12)Footnote 12. In Short v. Short, 142 A.D.2d 947, 531 N.Y.S.2d 155 (1988) , later proceeding 142 A.D.2d 948, 531 N.Y.S.2d 219 , an adult son and his wife worked full time for several years at a golf course and country club owned by his parents. It was held that the jury could properly find that the services were done with the expectation of payment. As important, the jury could find that the parents had reason to know that the services were rendered with such expectation.

(n13)Footnote 13.

Cal. - Marvin v. Marvin, 18 Cal.3d 660, 134 Cal.Rptr. 815, 557 P.2d 106 (1976) .

N.Y. - Morone v. Morone, 50 N.Y.2d 481, 429 N.Y.S.2d 592, 413 N.E.2d 1154 (1980) .

Ky. -See, e.g., Williams v. Payne, 515 S.W.2d 618, 94 A.L.R.3d 548 (Ky.1974) .

Wis. - Matter of Steffes, 95 Wis. 2d 490, 290 N.W.2d 697 (1980) .

(n14)Footnote 14.

Conn. -In Ostman v. Lee, 91 Conn. 731, 101 A. 23 (1917) , the defendant was put in possession of an old automobile under an agreement, as alleged by him, to buy it, if he found it useful for his business. He kept the machine for nearly two years, in the meantime having offered it for sale, and then notified the plaintiff that he did not wish to buy it. The defendant's acts were held to constitute an acceptance as a matter of law.

Mass. - Hobbs v. Massasoit Whip Co., 158 Mass. 194, 33 N.E. 495 (1893) . In Champlin v. Jackson, 317 Mass. 461, 58 N.E.2d 757 (1945) , the defendant sent in an order for lumber on stated terms. The plaintiff made a counter-offer to supply the lumber on somewhat different terms. The court reports no communicated acceptance of this counter-offer, but the defendant received the lumber shipped to him and marked the invoices ''O.K.'' This was held to be a good acceptance, making a unilateral contract. The conduct of the defendant-offeree operated as a promise to pay according to the terms of the counter-offer. Today, the applicability of U.C.C. § 2-207 would have to be considered. See § 3.37 below.

Miss. - J.W. Carter Co. v. Farley Clothing Co., 216 Miss. 238, 62 So.2d 305 (1953) , where shoes were sent to a retailer without being ordered, and it was held that sale of a few pairs by the retailer bound it to pay for the remainder.

Mo. - Austin v. Burge, 156 Mo.App. 286, 137 S.W. 618 (1911) .

N.H. - Fogg v. Portsmouth Atheneum, 44 N.H. 115 (1862) .

Pa. -The plaintiff mistakenly thought that the defendant had ordered 64 refrigerators and therefore shipped them. The defendant received them from the carrier, sending his carter for them. The court held that the defendant's acts operated as an acceptance and a promise to pay. Indiana Mfg. Co. v. Hayes, 155 Pa. 160, 26 A. 6 (1893) .

See also Hyatt v. Foster, 195 Ill.App. 428 (1915) , and Couret v. Conner, 118 Miss. 374, 79 So. 230 , reh'g denied, 118 Miss. 598, 79 So. 801 (1918) , where an assignment of notes was offered, to be effective instantly on acceptance.

Because the salutary rule applied in cases such as Ostman v. Lee, above, has been used by merchants who foisted goods on unwary purchasers as a deliberate selling tactic, legislation has been enacted to curtail the use of this tactic. See, e.g., The Postal Reorganization Act, 39 U.S.C.A. § 3009; McKinney's-N.Y.Gen.Obl.Law § 5-322; Neb.Rev.Stat. § 63-101. The principle of such cases, is, however, still viable in cases where the shipping of unordered merchandise is not a deliberate selling tactic. See U.C.C. § 2-606.

(n15)Footnote 15. In Prokopis v. Prokopis, 519 P.2d 814 (Alaska 1974) , the brothers Taso and Chris lived in a duplex. Chris bought it for $500 down, an agreement to make $3,000 of improvements the first year and the assumption of a 20-year note. Chris offered Taso a half-interest if Taso would assume half the payments and pay half the down payment and improvements. After a falling out, Chris tried to evict Taso, but the court found a valid unilateral contract, in which Chris offered his act (conveyance) in exchange for Taso's promises. The contract was held to be sufficiently definite for a grant of specific performance. Note that critics of the notion of reverse unilateral contracts claim that such contracts are bilateral. This contract clearly was bilateral. The offer was a promise to convey and requested promises in return. The conveyance was not self-executing on Taso's acceptance. In a true reverse unilateral contract the offeree automatically is entitled to exercise dominion over the performance upon acceptance without further action by the offeror.

(n16)Footnote 16. See Day v. Caton, 119 Mass. 513 (1876) .

(n17)Footnote 17. 198 F.2d 208 (1st Cir.1952) .

(n18)Footnote 18. Honda City Triumph, Inc. v. First Nat. Bank, 52 Md.App. 540, 451 A.2d 140 (1982) is one of many cases where a financing institution issues a loan check payable jointly to a borrower and an auto dealer. In this case, the bank had caused to be typed on the back of the check a legend purporting to obligate the dealer to register a lien on the car being bought with the loan proceeds. When the dealer accepted the check it was bound by the legend on the check. Its failure to register the lien was a breach of contract.

To the same effect is Oroweat Employees Credit Union v. Stroupe, 48 N.C.App. 338, 269 S.E.2d 211 (1980) .

In South Division Credit Union v. Deluxe Motors, Inc., 42 Ill.App.3d 219, 355 N.E.2d 715 (1976) , there was no breach of the contract so formed.

(n19)Footnote 19. Air Van Lines, Inc. v. Buster, 673 P.2d 774, 42 A.L.R.4th 1 (Alaska 1983) .

(n20)Footnote 20. At common law, if the parties have an honest dispute as to the amount owed by the drawer of the check to the payee, a clear indication on the check that the payee accepted it, if at all, in full satisfaction of a specified claim, the attempt to accept the check by cashing or depositing it without acceptance of the offer has been unavailing. Hudson v. Yonkers Fruit Co., 258 N.Y. 168, 171, 179 N.E. 373, 374, 80 A.L.R. 1052 (1932) (''protest will be unavailing if the money is retained. What is said is overridden by what is done, and assent imputed as an inference of law.)'' (Per Cardozo, J.).

(n21)Footnote 21. See Restatement (Second) of Contracts § 69(2). This is in accord with U.C.C. § 2-606.

(n22)Footnote 22. Horn Waterproofing Corp. v. Bushwick Iron & Steel Co., Inc., 66 N.Y.2d 321, 497 N.Y.S.2d 310, 488 N.E.2d 56 (1985) . Contra, Eder v. Yvette B. Gervey Interiors, Inc., 407 So.2d 312, 37 A.L.R.4th 353 (Fla.App.1981) (protest under U.C.C. § 1-207 will not prevent the formation of an accord and satisfaction.)

(n23)Footnote 23. Sherwin-Williams Co. v. Sarrett, 419 So.2d 1332, 42 A.L.R.4th 89 (Miss.1982) .

(n24)Footnote 24. Kelly v. Kowalsky, 186 Conn. 618, 442 A.2d 1355, 42 A.L.R.4th 111 (1982) .