143 Of 174 documents

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

Supp. To CHAPTER 3 ACCEPTANCE AND REJECTION OF OFFER

1-3 Corbin on Contracts Supp. to § 3.35

Supp. to § 3.35 Counter-Offers and Their Effect

[Go To Main]

(A) The following cases cite this section:

(1) Blackstone v. Thalman, 949 S.W.2d 470 (Tex. App. 1997) . A buyer's putative acceptance of an offer to sell real estate contained additional terms and therefore amounted not to an acceptance but to a rejection and counteroffer. Consequently, the seller's obligation to pay his broker a commission in the event the broker found a buyer ''ready, willing, and able'' to proceed had not arisen-this counter offeror was not such a buyer.

(2) Cook's Pest Control, Inc. v. Rebar, 852 So. 2d 730 (Ala. 2002) . This case is fully discussed at § 3.32.

(B) The following cases are noteworthy:

(1) Etablissement Asamar v. Lone Eagle Shipping, 882 F. Supp. 1409 (S.D.N.Y. 1995) (applying New York law). An offer less than the amount one party indicated a willingness to accept constituted a counteroffer. This case is also noted in § 3.25.

(2) Polk v. BHRGU Avon Properties, LLC, 2006 Fla. App. LEXIS 20760 . Polk listed her property for sale. An offer was made by Avon which was rejected on January 24 by two counteroffers from Polk that had to be accepted by February 7. On February 4, Avon made another offer to Polk that changed the material terms of Polk's counteroffers. Polk did not respond to Avon's February 4 offer. Avon then signed Polk's January 24 counteroffers and delivered them within the deadline accompanied by a $25,000 check. Polk's attorney received the check but marked it ''void'' instead of cashing it. Avon sought specific performance. The trial court held that Polk's counteroffers were option contracts that were irrevocable so long as Avon accepted them within the deadline and that Avon's February 4 offer did not terminate Avon's power to accept the irrevocable counteroffers. In the alternative, the court concluded that Polk accepted the counteroffers signed by Avon when Polk failed to object to them when they were presented to her with a check. The court decreed specific performance for Avon. On appeal, the instant court found that the Polk counteroffers were not option contracts because they were not supported by consideration. The deposit check was clearly designed as a deposit on the real estate contract and not tendered as consideration to make the counteroffers irrevocable. Avon's February 4 offer was a counteroffer which rejected Polk's counteroffers of January 24. Avon's attempt to accept either of the Polk counteroffers was, therefore, ineffective since Avon had no power of acceptance after rejecting them. There was no contract between Avon and Polk. The court reversed the decree for specific performance and remanded the case for final judgment in Polk's favor.

Supplement to Notes in Main Volume

3. U.S.- Pace Communications, Inc. v. Moonlight Design, 31 F.3d 587 (7th Cir. 1994) . Elegant Bride faxed Moonlight a form constituting an offer. When Moonlight added terms to the fax, signed it, and faxed it back, it rejected Elegant Bride's offer and made a counter-offer. Elegant Bride faxed back, saying that it was ''extremely pleased that you have decided to join our list of advertisers.'' No mention was made of the additional terms. Held: Elegant Bride's response to Moonlight's counteroffer was a sufficient manifestation of intent to form a contract. ''There is no requirement that parties discuss a contract's every term in order to be bound by it-indeed, such a rule would reward parties for their failure to read what they sign, hardly an incentive that contract law would seek to create.''

4. Tenn.- Union Realty Co. v. Moses, 984 F.2d 715 (6th Cir. 1993) (counteroffer may be accepted by conduct without violating mirror image rule).