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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 § 3.32

§ 3.32 Attempts by the Offeree to Restate in the Acceptance the Terms of the Offer

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If the purported acceptance attempts to restate the terms of the offer, such restatement must be accurate in every material respect.n1 It is not a variation if the offeree merely puts into words that which was already reasonably implied in the terms of the offer.n2 But the very form of words used by the offeror is material if the offeror so intended and so indicated in the offer. An acceptance using a different form makes no contract.n3 A variation in the substance of the offered terms is material, even though the variation is slight,n4 although an occasional forward-looking case looks to whether the variation is of any real significance to the offeror.n5

If the offer leaves the time for performance at the option of the offeree, an acceptance may be operative even though it names a specific date.n6 The acceptance of an offer to sell land making no specifications or limitations as to title is not made conditional by including a provision requiring ''marketable title.''n7 By judicial decision and conveyancing custom, unless otherwise specified in the offer, the vendor impliedly promises ''marketable title'' and the conveyance of such title is an implied condition of the purchaser's duty. But an acceptance ''subject to the approval of title by our attorneys'' is not an operative acceptance, the specified condition being materially different from any that would be implied.n8 There are many cases in which an offeree has failed to make a valid acceptance by including some provision as to quality of title that is other than mere ''marketable title.''n9

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

Contracts LawFormationOffersGeneral OverviewContracts LawFormationAcceptanceGeneral Overview

FOOTNOTES:

(n1)Footnote 1.

U.S. - Kurio v. United States, 429 F.Supp. 42, 66 (S.D.Tex.1970) ; United States v. Braunstein, 75 F.Supp. 137 (S.D.N.Y.1947) , appeal dismissed, 168 F.2d 749 (2d Cir.) .

Kan. - Bennett v. Cummings, 73 Kan. 647, 85 P. 755 (1906) .

Mich. - Jordan Bros. v. Walker, 154 Mich. 394, 117 N.W. 942 (1908) , where offer to sell ''two tanks'' of pickles was not effectively accepted by a letter saying ''presume this is about 2000 bushels,'' pickle tanks being of varying sizes.

In Stuart v. Franklin Life Ins. Co., 165 F.2d 965 (5th Cir.1948) , cert. denied, 334 U.S. 816 , a change from ''title insurance ... satisfactory to purchasers'' to ''title insurance by financially strong and reputable title insurance company'' was said to be unimportant, but a change with respect to leases constituting part of the subject matter from ''leases to bear an annual rental of 3 percent per annum'' to ''leases now bearing 3 cents per acre'' was held to be vital.

(n2)Footnote 2.

U.S. - Shea v. Second Nat'l Bank, 133 F.2d 17 (1942) ; Machine Tool & Equip. Corp. v. Reconstruction Finance Corp., 131 F.2d 547 (9th Cir.1942) ; Columbia Malting Co. v. Clausen-Flanagan Corporation, 3 F.2d 547 (2d Cir.1924) ; Morse v. Tillotson & Wolcott Co., 253 Fed. 340, 1 A.L.R. 1485 (2d Cir.1918) ; Phoenix Iron & Steel Co. v. Wilkoff Co., 253 Fed. 165, 1 A.L.R. 1497 (6th Cir.1918) .

In re Lamarre, 34 B.R. 264 (Bkrtcy.D.Maine 1983) , the vendor accepted the purchaser's offer subject to the approval of the bankruptcy court. Because the need for such approval was known to both parties, it was an implied term and therefore the acceptance was unconditional.

In Titan Group, Inc. v. Anne Arundel County, Dep't of Public Works, 588 F. Supp. 938 (D.Md.1984) , aff'd, 749 F.2d 32 (4th Cir.) (construing an agreement to arbitrate under the Federal Arbitration Act). The County offered to arbitrate pursuant to the rules of the AAA. Titan agreed on the condition that ''the arbitration be held in a neutral location where there are adequate facilities such as the City of Philadelphia, the City of New York, or the City of Washington, D.C.'' This was implied in the offer.

Ala. - Ryder v. Johnston, 153 Ala. 482, 45 So. 181 (1907) , ''good title.''

Kan. - Bennett v. Cummings, 73 Kan. 647, 85 P. 755 (1906) , weights of corn sold to be determined by reliable men.

N.M. - Pickett v. Miller, 76 N.M. 105, 412 P.2d 400 (1966) . Tenant had an option to renew. Offeror who offered to purchase knew of the option. Owner's acceptance subject to release of tenant's renewal option was not a counter-offer but only a statement of a condition implied in the purchaser's offer.

Okl. - Magna Oil & Ref. Co. v. Parkville Oil Corp., 96 Okl. 157, 221 P. 65 (1923) .

Or. - C.R. Shaw Wholesale Co. v. Hackbarth, 102 Or. 80, 198 P. 908 (1921) .

Wash. - General Lithographing & Printing Co. v. Washington Rubber Co., 55 Wash. 461, 104 P. 650 (1909) ; Northwest Television Club, Inc. v. Gross Seattle, Inc., 26 Wn. App. 11, 612 P.2d 422 (1980) , aff'd in part, rev'd in part, 96 Wn.2d 104, 634 P.2d 837 , corrected, 96 Wn.2d 973, 640 P.2d 710 .

W.Va. - Charbonnages De France v. Smith, 597 F.2d 406 (4th Cir.1979) , ''pending formal [French] government approval'', where both parties were aware of the need of such approval.

Wis. - Curtis Land & Loan Co. v. Interior Land Co., 137 Wis. 341, 118 N.W. 853 (1908) .

Wyo. - Panhandle Eastern Pipe Line Co. v. Smith, 637 P.2d 1020 (Wyo.1981) .

In Nelson v. Hamlin, 258 Mass. 331, 155 N.E. 18 (1927) , replying to an offer of $12,000 per year as chief engineer, the plaintiff wrote: ''I hereby accept ... it being understood that you wish me to stay in my present position ... until conditions make it necessary to place me elsewhere.'' This was held not conditional.

In Hansen Pacific Corp. v. Buck Mountain Logging Co., 191 Cal.App.2d 826, 13 Cal.Rptr. 82 (1961) , the acceptance of an offer to sell timber, price to be determined by a cruise the seller was then making, ''cash down payment of $400,000 or 29% of the total purchase price, whichever amount is the smaller'' was not made a ''conditional'' acceptance by a statement that the purchaser would make the cash payment ''when you have furnished us with ... a report of the cruise.'' The terms of the offer itself were such that the amount of the cash payment required could not be determined prior to the report of the cruise. Case noted also under §§ 149, 640.

(n3)Footnote 3.

U.S. - Phoenix Iron & Steel Co. v. Wilkoff Co., 253 Fed. 165, 1 A.L.R. 1497 (6th Cir.1918) .

(n4)Footnote 4.

U.S. - Columbia Malting Co. v. Clausen-Flanagan Corp., 3 F.2d 547 (2d Cir.1924) , offer of ''standard malt,'' acceptance ''malt of choice brewing quality''.

Ill. - Snow v. Schulman, 352 Ill. 63, 185 N.E. 262 (1933) ; Brach v. Matteson, 298 Ill. 387, 131 N.E. 804 (1921) .

Mich. - W.C. Sterling & Son Co. v. Watson & Bennett Co., 193 Mich. 11, 159 N.W. 381 (1916) , offer of 4,000 poles is not accepted if offeree adds ''more or less''.

Nev. -In Chapp v. Peterson, 80 Nev. 555, 397 P.2d 5 (1964) , the escrow agent varied seller's terms by adding ''or more'' to monthly payment terms of $500. Buyer accepted the escrow instructions but seller refused to sign them. Held that no contract was formed as the buyer accepted a non-existent offer.

N.Y. - Barrow Steamship Co. v. Mexican Cent. R. Co., 134 N.Y. 15, 31 N.E. 261 (1892) , an offer to send about 250, acceptance ''not less than 250.''

Pa. - Servicised Premoulded Products, Inc. v. American Insulation Co., 104 Pa.Super. 469, 159 A. 228 (1932) , offer specified that shipments should be as offeror should later determine, acceptance fixed the dates.

Wash. - Johnson v. Star Iron & Steel Co., 9 Wash.App. 202, 511 P.2d 1370 (1973) . The offer stated ''bank of our choice''; the acceptance changed this to ''Bank of Tacoma.''

Eng. -Jordan v. Norton, 4 M. & W. 155 (1838), buyer offered to buy mare if ''sound and quiet in harness,'' seller said ''sound and quiet in double harness''.

It is not a variation merely to add words that make more certain the description of the subject matter, as where the offeree indicates the county in which land offered for sale to him is located. Curtis Land & Loan Co. v. Interior Land Co., 137 Wis. 341, 118 N.W. 853 (1908) .

(n5)Footnote 5. In Thomsen v. Glenn, 81 Nev. 56, 398 P.2d 710 (1965) , an offer was made on a form provided by the broker, but supplied to the broker by a title company whose name was pre-printed as the escrow agent. The defendant's reply was arguably a counter-offer. The plaintiff's acceptance therefore was by conduct, depositing money with a title company as escrow agent. The use of a different escrow agent from that specified in the offer was held immaterial and, therefore, not a counter-offer.

(n6)Footnote 6. Collin v. Wetzel, 163 Md. 194, 161 A. 18 (1932) .

(n7)Footnote 7.

U.S. - Townsend v. Stick, 158 F.2d 142 (4th Cir.1946) .

Ala. - Ryder v. Johnston, 153 Ala. 482, 45 So. 181 (1907) .

Ga. - Whelchel v. Waters, 152 Ga. 614, 111 S.E. 25 (1922) .

Wash. - Northwest Properties Agency v. McGhee, 1 Wash.App. 305, 462 P.2d 249 (1969) . Defendant offered to deliver title ''free of encumbrances and defects.'' Plaintiff added: ''provided that no restrictions to the utilization of the property exists by virtue of its proximity to the freeway.'' This was held to be implicit in the offer.

Wis. - Curtis Land & Loan Co. v. Interior Land Co., 137 Wis. 341, 118 N.W. 853 (1908) , tax liens to be removed.

It is otherwise, however, if ''perfect title'' is required.

Ill. - Corcoran v. White, 117 Ill. 118, 7 N.E. 525 (1886) .

In Wheaton Bldg. & Lumber Co. v. Boston, 204 Mass. 218, 90 N.E. 598 (1910) , a contractor's bid on public work was accepted by the commissioners, subject to the approval of the mayor. As the bidder himself knew, the statutes required such approval. The acceptance was not invalidated by expressing this condition.

In Magna Oil & Refining Co. v. Parkville Oil Corp., 96 Okl. 157, 221 P. 65 (1923) , the acceptance specified shipment in ''insulated'' cars, but this was already required by law.

(n8)Footnote 8.

U.S. - Dickey v. Hurd, 33 F.2d 415 (1st Cir.1929) , cert. denied, 280 U.S. 601 .

N.C. - Richardson v. Greensboro Warehouse & Storage Co., 223 N.C. 344, 26 S.E.2d 897, 149 A.L.R. 201 (1943) . But in Burkhead v. Farlow, 266 N.C. 595, 146 S.E.2d 802, 16 A.L.R.3d 1416 (1966) , an acceptance of an option to purchase land subject to a title examination was held to be no more than a request for marketable title and therefore an unconditional acceptance, citing this section.

(n9)Footnote 9. See:

Fla. - Mehler v. Huston, 57 So.2d 836 (Fla.1952) , additional requirement that abstract of title be furnished.

Ill. - Corcoran v. White, 117 Ill. 118, 7 N.E. 525 (1886) , ''provided the title is perfect''; Bolton v. Huling, 195 Ill. 384, 63 N.E. 140 (1902) , ''if title proves satisfactory''.

Mass. - Lawrence v. Rosenberg, 238 Mass. 138, 130 N.E. 189 (1921) , limitation as to title added.

Mich. - Thomas v. Ledger, 274 Mich. 16, 263 N.W. 783 (1935) , ''warranty deed free and clear of all encumbrances and taxes as well as an abstract''.

Okl. - Landrum v. Jordan, 100 Okl. 272, 229 P. 182 (1924) , ''good and sufficient title in fee simple, clear of all liens and encumbrances''.

Or. - Flegel v. Dowling, 54 Ore. 40, 102 P. 178 (1909) , clear title, warranty deed, and abstract.