§ 1.23 Unilateral Contracts Distinguished From Bilateral

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The differences between a unilateral contract and a bilateral contract, as those terms are now commonly used, lie both in the operative acts of the parties and also in the legal relations created thereby. A unilateral contract consists of a promise or group of promises made by one of the contracting parties only, usually assented to by the other. There are many cases in which such an assent is not required.n1 A bilateral contract consists of mutual promises, made in exchange for each other by each of the two contracting parties. In the case of a unilateral contract, there is only one promisor. The legal result is that the promisor is the only party who is under an enforceable legal duty. The other party to this contract is the one to whom the promise is made, and this promisee is the only one in whom the contract creates an enforceable legal right. In a bilateral contract, both parties are promisors and both parties are promisees. The legal effect of such a contract is that there are mutual rights and mutual duties. The distinction between these two classes of contracts is of importance in the analysis of a contractual transaction and in determining its validity and its exact legal operation. A failure to recognize this distinction has in innumerable instances led to the making of such an erroneous statement as, ''Both parties must be bound, or neither is bound''; and occasionally it has led to an unjust and erroneous decision.n2

It is, of course, true that, as in the case of other legal expressions, the terms unilateral and bilateral have been used in senses other than those here adopted. Some courts and law writers, adopting a definition other than that here given and assuming that the definition so adopted is the one correct, absolute, and eternal definition, have declared that in the nature of things there can be no such thing as a unilateral contract. It has been said that a unilateral contract is a legal solecism.n3 A very learned writer has declared that a unilateral contract is as impossible in its nature as ''a unilateral elephant'' or ''unilateral twins.''n4 A frequent statement is that, until an offer has been accepted, the contract is unilateral and cannot be enforced; obviously, in such a case, the term ''contract'' should not be used at all.n5 Another common statement is that it takes two to make a contract. In the great majority of cases, that is, in the case of ''bargains,'' this is a true statement; but there are exceptions.

In a subsequent chapter there is a discussion of certain classes of promises that are enforceable, without any consideration being given for them and without any expression of assent by the promisee. These are special classes, however, and cannot be considered at this point.

The term unilateral contract as defined herein does not mean that there is only one party to the contract. It does mean, however, that the promise or promises have been made by one party alone. In the great majority of cases, however, the promise of this party will not be an enforceable contract unless consideration has been given in return for it, or unless there has been some expression of assent to the delivery of a document containing the promise. In most cases, therefore, even though a contract may properly be described as unilateral, it takes two persons to make it. The action of a second party, usually the promisee, is in most cases necessary to make a promise binding; and, unless the promise that is made is enforceable at law, we do not call it a contract at all. In all cases of ''bargain,'' one party offers his promise in exchange for a specified consideration; and in order to ''close the deal'' and make a ''contract'' that consideration must be given. If this consideration is an action or forbearance instead of a promise, the resulting contract is ''unilateral.'' It nevertheless takes two to make it.

Of course more than two individuals may participate in a contractual transaction. When such is the case, the persons involved are usually divided into two separate groups, each of which is contracting with the other group. For very many purposes, such a contract may be treated just as if it had been made by two individuals, and not by two groups of individuals; and the contract may be properly described as either bilateral or unilateral, in accordance with the promises that have been made. It must not be forgotten, however, that, as the number of participating individuals increases, the various legal relations among them will increase by geometrical progression. Many issues of law may arise amongst these individuals that could not possibly arise in the case of a contract made by only two individuals. This makes necessary a full discussion later on of those contracts that are commonly described as joint or joint and several.

No doubt three or more persons can participate in one contractual transaction, without being segregated into only two groups. This would make possible such classifications as ''trilateral'' contracts and ''quadrilateral'' contracts. Thus far, no one has found it necessary to make use of such a classification in making a statement of contract law.

The distinction between unilateral and bilateral contracts will continually appear in the chapters dealing with offer and acceptance and with consideration. It may be useful at this point, however, to give some illustrations of a unilateral bargain and of unilateral contracts that are not ''bargains.'' Observe that in a unilateral contract there is only one promisor, who may be either the offeror or the offeree-the party who first proposes the making of such a contract, or the party to whom it is proposed and who is to accept the proposal.

(1) A makes a promise in writing to pay to B $100 and signs, seals and delivers the document. At common law, and still today in a number of jurisdictions, this is a unilateral contract that creates a duty in A and a correlative right in B, just as soon as B, or some one acting on B's behalf, receives delivery of the document. The promisor is the offeror. The transaction is not a ''bargain''; nothing is exchanged for the promise.

(2) A delivers to B a promissory note or an I O U in return for $100, then lent to A by B. A is the only promisor, the only one under a contractual duty. The contract is unilateral.n6 Cash is bargained for and received in exchange for the written promise.

(3) A accepts a bill of exchange drawn upon A by B in favor of C. This creates a right in C and a duty in A. The contract is unilateral. The promisor is the offeree.

(4) A offers a reward of $100 to any one who will return a lost article. B returns the article with the intent to accept the offer. A unilateral contract has thus been made.n7 The offeror is the only promisor.

(5) A writes to B, ''Ship me 2 cars XX flour via B. & O., at once, price $100 per bbl. C.O.D.'' B ships at once as requested. A unilateral contract seems to be created. However, because the law attaches a warranty of merchantability (and other warranties) to the transaction, there is more than one obligor and the contract is bilateral. Because in cases such as this the distinction may result in profitless hair-splitting, some have argued that the bilateral-unilateral distinction is more confusing than useful.

(6) A sends his brother, Harry, to B with the following letter of credit, ''Let Harry have $1,000 and I will guarantee repayment in 30 days.'' B advances $1,000 as requested. The contract is unilateral. There is only one promisor. As between A and B, only one party, A, is ever under an obligation.

(7) A promises B to pay a salary at the rate of $40,000 a year for B's services as superintendent. B may recover at the specified rate for such service as B thereafter renders, but the hiring is a hiring at will. B has made no promise to continue in service and no such promise has been requested. If, by implication, a promise by B is found that the service shall be of a certain kind or quality, the contract is to that extent bilateral.

It has been said that unilateral contracts are made either by an offer of a promise for an act or by an offer of an act for a promise. This means, although the descriptive words are not exact, that the single duty may rest on the offeror, the right being in the offeree, or vice versa. The words are inexact because the making of a promise is itself an act. All offers are acts and all acceptances are acts, whether the resulting legal relations are property as in the case of a barter, or constitute a contractual obligation, either unilateral or bilateral. It would be more exact, and less confusing, to say that unilateral contracts are made either by an offer of a promise for a performance or by the offer of a performance for a promise. Yet, even this generalization fails to describe all of the cases. It accurately describes only the cases of ''bargains.'' In example (1) above, the offeror makes a promise and undertakes a duty, but requests no performance whatever as an equivalent. The only act on the part of the offeree is such an act of acceptance of the physical document as may be necessary to constitute a legally effective delivery by the offeror. The duty is on the offeror.

Example (2)

is a case where it does not clearly appear which party made the offer. If A offered an I O U to be accepted by a transfer of money, it was an offer of a promise for a performance. If B offered a transfer of the money in return for the I O U, the only promise was made by the offeree, and it was the offeror who gave the bargained-for equivalent (the money).n8

In example (3), C makes the offer by presenting the bill to A for acceptance. C thereby confers upon A the legal power of binding himself or herself alone to pay a sum of money. In presenting the bill C does an act, but is not offering this act as the legal equivalent and agreed return for A's promise. There is no offer of a performance for a promise; but the act of the offeror was necessary before the offeree could undertake the duty. The acceptance of such a bill may, however, be only one act in a large and complex transaction in which mutual promises are made.

A bilateral contract is made in much the same way as is a unilateral bargain or a barter. The offeror does an act conferring a power upon the offeree, and the offeree does the act that constitutes the exercise of the power. The legal result, however, is a relation consisting of mutual rights and duties, special and personal in character. It is bilateral not because there are two parties. Unilateral contracts have at least two parties. Rather, it is bilateral because two parties come under an obligation. The following are examples of bilateral contracts:

(8) A says to B, ''I promise to serve you as bookkeeper for one month in return for your promise to pay me $3,000.'' B replies, ''I accept.''

(9) A writes to B, ''I promise to convey Blackacre to you on June 1st in return for your promise to pay me $100,000 at that time. You may accept by cable, using the one word 'Blackacre'.'' B sends the cable dispatch ''Blackacre,'' as requested.

In case (8) the acts of offer and acceptance are oral promissory words. In case (9) the offer is the act of writing and the further acts whereby this writing is sent to the offeree. The acceptance consists of acts by B, whereby B directs the cable company to transmit the word ''Blackacre.'' These acts by B would not customarily amount to a promise to pay $100,000; but, in this case, they do become such a promise because A will so interpret them and B knows it. In the same way any other act, in itself meaningless, may be specified and may thereby become a return promise.

It is not always an easy matter to determine whether an offer looks to the creation of a unilateral or bilateral contract. Frequently, this determination will have very important results, especially where the offeror has attempted to revoke the offer, as explained elsewhere. The form of words used by the parties is not conclusive, especially when examined out of their setting and with the aid of nothing but a dictionary. The meaning of words, as used by the parties to a contract, cannot be determined with mathematical certainty. The judge who is most certain to do injustice is the pedant who holds contractors to meticulous accuracy in the usage of words and in the construction of sentences.n9 Also, as in example (6) above, frequently the meaning of words are not in issue, but rather the appropriate legal analysis of words about the meaning of which there is no disagreement.

The distinction between unilateral and bilateral contracts has been criticized on several grounds. First, it groups several distinct situations under one heading. For example, the gift of a promise under seal has little in common with other kinds of unilateral contracts. Second, for the most part there is no difference in consequences between a unilateral and a bilateral contract. Third, ''the effect of the distinction has been to exaggerate the importance of the type of bargain in which one party begins performance without making any commitment, as in the classic classroom case of the promise to pay a reward for climbing a flagpole.''n10 Fourth, it has been contended that true unilateral contracts are rare and of little commercial importance, and they should be relegated to the ''freak tent.''n11

In response to these concerns, the Restatement (Second) of Contracts has abandoned the terms ''unilateral'' and ''bilateral,'' without, however, abandoning the concepts behind them.n12 Rather, the abandonment appears to have been an attempt to deemphasize some of the consequences of these concepts. The deemphasis comes primarily from the adoption of the notion that, in perhaps the great majority of cases, the offeror is indifferent to the proper method of acceptance. Where the offeror makes it crystal clear that a promissory acceptance is desired, the Restatement (Second) makes it clear that freedom of contract prevails and the offeror is entitled to the requested promise for the offer to ripen into a contract. Conversely, if the offer is clear that a performance is requested as the only permissible means of acceptance, the offeror continues to be master of the offer.n13

Despite the deemphasis in the Restatement (Second) of unilateral contract analysis, since the abandonment of the term in 1964 by the American Law Institute,n14 one careful scholar has documented an explosive growth of unilateral contract decisions in the courts. Rather than being confined to the ''freak tent,'' the use of unilateral contract analysis has been growing. ''The typical cases involve claims by employees against present or former employers for employment benefits of one kind or another. Employees may assert rights to pension benefits, bonus or incentive payments, profit sharing benefits, severance pay or other benefits.''n15 In addition to employee benefit cases, such analysis is useful in many cases involving brokerage commissions,n16 rewards,n17 prizes,n18 credit guarantees,n19 manufacturer's warranties,n20 options,n21 insurance policiesn22 and releases.n23

It can hardly be said that courts are often pedantic in determining whether a contract (or an offer to one) is unilateral or bilateral, though it is possible that professors of law may have been. The distinction between unilateral and bilateral has not yet been very thoroughly grasped by some lawyers, a fact which has led to the erroneous statement that one cannot be bound unless the other is bound. The judges, therefore, are not in general too likely to hold that a proposed contract is unilateral when the parties meant it to be bilateral.n24

Suppose A writes to B, ''I will pay you $50,000 for Blackacre,'' and B replies, ''I accept your offer.'' This seems to be bilateral, and it is too late for A to revoke. A clearly makes a promise to pay money; and, according to ordinary understanding, A requests B to make a return promise to convey the land. But if A has asked an actual conveyance of Blackacre as the equivalent of the promise to pay, B can accept only by executing a deed of conveyance, not by saying ''I promise to convey.'' This second situation is so unusual that only the clearest combination of language and circumstances will justify the conclusion that only a conveyance can create the contract.

A good example of a unilateral contract is found in Packard Englewood Motors v. Packard Motor Car Co.n25 The defendant manufacturer offered to allot an additional car to each dealer in return for the dealer's shipment of a ton of scrap iron, the iron to be paid for at the market price. Here the defendant made two promises: to allot cars and to pay for the iron. The Dealer accepted by actual shipment of the iron, without making any promise, either to ship iron or to order cars that might be allotted to him. His shipment bound the defendant to ''allot'' the cars (subject to his order) and to pay for the iron shipped. Such shipment created in the Dealer the correlative right to such allotment; that is, the right to have an option to buy cars. See Chap. 11, Option Contracts. If the Dealer ordered cars in accordance with the allotment, a bilateral contract would thereby be consummated, the defendant having promised to deliver the cars and the Dealer promising to pay for them.

In Freeport Sulphur Co. v. Aetna Life Ins. Co.,n26 a group insurance policy was held to be a valid unilateral contract, the employer having an irrevocable option to enter new employees under the policy coverage though under no obligation to do so.

Legal Topics:

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

Contracts LawNegotiable InstrumentsEnforcementDuties & Liabilities of PartiesGeneral OverviewContracts LawNegotiable InstrumentsGeneral OverviewContracts LawConsiderationEnforcement of PromisesGeneral OverviewContracts LawPerformanceIllusory PromisesContracts LawTypes of ContractsBilateral ContractsContracts LawTypes of ContractsUnilateral ContractsGeneral Overview

FOOTNOTES:

(n1)Footnote 1. See Chapters 8 and 9, Informal Contracts without Assent or Consideration.

A unilateral option contract is discussed at length in Pace Corp. v. Jackson, 155 Tex. 179, 284 S.W.2d 340 (1955) . This section is cited, § 4.6 is quoted, and §§ 152, 262, 263, 264 are also cited. The contract was a ''requirements'' option contract.

(n2)Footnote 2. In the past, courts frequently used the term ''unilateral'' to refer to a promise that is without consideration especially in those cases where mutual promises have been given, but one of them is illusory; as where A offers a promise to carry all the milk that B may care to ship, at fixed rates, and B accepts the offer and promises to pay those rates for all milk shipped by him with A. This usage should be abandoned. Both A and B have made seeming promises, but neither one has resulted in either a right or a duty. There is no obligation, unilateral or otherwise. A has made an offer and perhaps B still has a power of acceptance. This one new relation might be described as unilateral; but the same may be said of any offer, and it is not customary to do so. See:

Ga. - Morrow v. Southern Exp. Co., 101 Ga. 810, 28 S.E. 998 (1897) .

Ill. - American Refrig. Transit Co. v. Chilton, 94 Ill.App. 6 (1900) .

Ky. - Rehm-Zeiher Co. v. F.G. Walker Co., 156 Ky. 6, 160 S.W. 777 (1913) .

Md. - Ziehm v. Frank Steil Brewing Co., 131 Md. 582, 102 A. 1005 (1917) .

N.Y. - Meade v. Poppenberg, 167 App.Div. 411, 153 N.Y.S. 182 (1915) .

Farago v. Burke, 262 N.Y. 229, 186 N.E. 683 (1933) , illustrates the cases that repeat the statement that both parties must be bound or neither is bound. The court says: ''One cannot enforce a contract that is not binding upon himself.'' But in this case, as the court expressly held, there was no contract or agreement. The defendant signed a writing promising to sell land on stated terms. The plaintiff said orally that the terms were all right, but that he wanted his lawyer to see it; the defendant thereupon let the plaintiff take it away. Before any further expression by the plaintiff, the defendant gave notice of revocation. There was nothing except a revocable offer.

(n3)Footnote 3.

Ind. - High Wheel Auto Parts Co. v. Journal Co., 50 Ind.App. 396, 98 N.E. 442 (1912) .

(n4)Footnote 4. John S. Ewart, reviewing Anson on Contracts, 33 Harv.L.R. 626 (1919-20).

(n5)Footnote 5. ''The distinction between unilateral contracts and bilateral contracts is recognized. A unilateral contract is one in which there is a promise on one side only, the consideration on the other side being executed. A familiar illustration is an option, upon valuable consideration, to purchase land. The promisor only is bound, the promisee being at liberty to comply or not at his option, his consideration being executed. The proposition of Mrs. McMahan was but an offer to sell, which she had the right to revoke at any time prior to acceptance by McMahan, neither being bound up to that time, and both being bound thereafter. The fact that her offer may have been made upon conditions to be accepted by McMahan did not convert her proposal into any kind of contract, unilateral or bilateral... After his acceptance, it was beyond the power of Mrs. McMahan to revoke her proposal.'' McMahan v. McMahon, 122 S.C. 336, 115 S.E. 293, 26 A.L.R. 1295 (1922) .

(n6)Footnote 6. The following is an example of a similar valid unilateral contract: K.M. paid $2,000 to the Society of Missionary Catechists of Our Blessed Lady of Victory, and in return the latter promised to pay interest thereon at six per cent during the life of K.M., and to repay any part of the principal sum on demand of K.M. during her life. It was properly held that the administratrix of K.M.'s estate had no right to any part of the $2,000 for which K.M. had made no demand, but had a right to interest to the date of K.M.'s death. Society of Missionary Catechists v. Bradley, 112 Ind.App. 556, 44 N.E.2d 209 (1942) .

(n7)Footnote 7. See § 3.8, Acceptance by Overt Act.

(n8)Footnote 8. Where one sends a new idea or suggestion as to methods of advertising, hoping that the offeree will use it and pay for it, such use by the offeree may be held to be the acceptance of an offer. In such a case, neither party makes an ''express'' promise. It is clear that the offeree's promise, if any, is an ''implied'' promise; the offeror may make no promise whatever. See:

Ind. - Liggett & Meyer Tobacco Co. v. Meyer, 101 Ind.App. 420, 194 N.E. 206 (1934) .

N.Y. - Paul v. Haley, 183 A.D.2d 44, 588 N.Y.S.2d 897 (1992) ; Healey v. R.H. Macy & Co., 251 App.Div. 440, 297 N.Y.S. 165 (1937) , aff'd, 277 N.Y. 681, 14 N.E.2d 388 ; Grombach Productions v. Waring, 293 N.Y. 609, 59 N.E.2d 425 (1944) , mot. denied, 294 N.Y. 697, 60 N.E.2d 846 .

Pa. - Thomas v. R.J. Reynolds Tobacco Co., 350 Pa. 262, 38 A.2d 61, 157 A.L.R. 1432 (1944) .

The mere fact that one gives a valuable ''tip'' or information on which another acts to his profit is not a sufficient basis to justify the implication of a promise to pay. There must be reason to know that the information was offered for compensation. Anderson v. Distler, 173 Misc. 261, 17 N.Y.S.2d 674 (1940) .

A case falling within this note is Desny v. Wilder, 46 Cal.2d 715, 299 P.2d 257 (1956) , where the plaintiff submitted an idea for a photoplay, with a synopsis, and the court held that the jury might reasonably find an implied promise by the defendant to pay reasonable value in case he made use of the idea and synopsis.

See also § 1.20 above.

(n9)Footnote 9. ''The logic of the portion of the opinion above quoted from the standpoint of the grammarian and verbal precision, is unassailable; but it may be questioned whether so literal, narrow, and technical a construction ought to be put upon such an ordinary business communication.'' Bauman v. McManus, 75 Kan. 106, 89 P. 15 (1907) , ''In interpreting a declaration of intention, the real intention is to be looked for and it is not to be tied to the literal sense of the expression.'' German Civil Code, sec. 133. See Chapter 24, Interpretation.

In Hollidge v. Gussow, Kahn & Co., 67 F.2d 459 (1st Cir.1933) , a dealer sent a written order to a publisher ''for 160,000 copies of the K. Courier (an advertising leaflet) divided into 8 issues of 20,000 per issue.'' Delivery, one issue per month. ''Price $940 per issue, $7,520 complete for 8 issues.'' Contents and material ''subject to okay.'' ''Subject to approval of your credit dep't.'' There was no proof of any oral or written acceptance, but there were conferences and one issue was printed and delivered. The dealer then became bankrupt. Did the publisher have a claim for lost profits on the next 7 issues? It was held, rightly, that the ''order'' was an offer to make one contract, not eight separate ones, and that if the contract was to be unilateral the publisher bound the dealer irrevocably by making a substantial beginning of the requested performances for 8 months. The dealer was bound by a unilateral contract to pay $7,520, conditional on the monthly publications. Restatement, Contracts, § 45, was held applicable. In a case like this, it would be equally reasonable to find that the publisher had made a return promise by implication to publish the 8 issues. Restatement (Second) of Contracts § 62. Had the publisher failed to continue publication, the dealer should have had a claim for damages.

(n10)Footnote 10. Restatement (Second) of Contracts § 12, Reporter's Note (Tent. Draft No. 1, 1964), quoted in full by the Reporter in Braucher, Offer and Acceptance in the Second Restatement, 74 Yale L.J. 302, 304 (1964), reproduced, with variations, in the final draft of Restatement (Second) of Contracts § 1, Reporter's Note.

(n11)Footnote 11. Karl Llewellyn, On Our Case-Law of Contract: Offer and Acceptance (pts. 1 & 2), 48 Yale L.J. 1 & 779, at 36 (1938-1939).

(n12)Footnote 12. While the Restatement (Second) of Contracts distinguishes between ''acceptance by performance'' and ''acceptance by promise'' and its Reporter has described these as ''substitute phrases,'' (Robert Braucher, Offer and Acceptance in the Second Restatement, 74 Yale L.J. 302, 304 (1964)), they are by no means used as synonyms for the unilateral-bilateral distinction. At times an offer inviting ''acceptance by performance'' can lead to a bilateral contract. See Restatement (Second) of Contracts § 62(2). The bilateral-unilateral distinction is preserved instead in the phrase ''[w]here an offer invites an offeree to accept by rendering a performance and does not invite a promissory acceptance,'' used in Restatement (Second) of Contracts § 45(1). This is surely a cumbersome substitute for the phrase ''offer to a unilateral contract.'' Writers in the field continue to use the traditional terminology. See John D. Calamari & Joseph M. Perillo §§ 1-10, 2-10 (3d ed. 1987); E. Allan Farnsworth, Contracts § 3.4 (2d ed. 1990); John Murray, Contracts § 46 (3d ed. 1990). The justification for preserving the traditional terminology is perhaps best given in the article by Professor Pettit, cited below.

(n13)Footnote 13. Restatement (Second) of Contracts § 53(1).

(n14)Footnote 14. ''Sometimes innovation does not take the form of a new substantive rule but rather of a new perspective on the problem, reflected in the substitution of a new terminology or analysis for a traditional one. For example, the Restatement (Second) abandons the terms 'unilateral' and 'bilateral' as descriptions of contracts... There is no way to assess the extent to which such innovations in terminology and analysis portend innovations of substance.'' E. Allan Farnsworth, Ingredients in the Redaction of the Restatement (Second) of Contracts, 81 Colum.L.Rev. 1, 5-6 (1981).

(n15)Footnote 15. Mark Pettit, Jr., Modern Unilateral Contracts, 63 B.U.L.Rev. 551, 560-61 (1983).

(n16)Footnote 16.

Cal. - Erich v. Granoff, 109 Cal.App.3d 920, 167 Cal.Rptr. 538 (1980) .

Del. - "Industrial America," Inc. v. Fulton Industries, Inc., 285 A.2d 412 (Del.1971) .

N.Mex. - Marchiondo v. Scheck, 78 N.M. 440, 432 P.2d 405 (1967) .

(n17)Footnote 17. Shuey v. United States, 92 U.S. (2 Otto) 73, 23 L.Ed. 697 (1975) .

(n18)Footnote 18. Long v. Chronicle Publishing Co., 68 Cal.App. 171, 228 P. 873 (1924) ; Rosenthal v. Al Packer Ford, Inc., 36 Md.App. 349, 374 A.2d 377 (1977) .

(n19)Footnote 19.

Me. - Hills v. Gardiner Sav. Inst., 309 A.2d 877 (Me.1973) .

Mass. - Jordan v. Dobbins, 122 Mass. 168 (1877) ; Bishop v. Eaton, 161 Mass. 496, 37 N.E. 665 (1894) .

Minn. - Midland Nat'l Bank v. Security Elevator Co., 161 Minn. 30, 200 N.W. 851 (1924) .

N.Y. - City Nat'l Bank v. Phelps, 86 N.Y. 484 (1881) .

Pa. - Ross v. Leberman, 298 Pa. 574, 148 A. 858 (1930) .

Wash. - Knight v. Seattle First Nat. Bank, 22 Wash.App. 493, 589 P.2d 1279 (1979) .

(n20)Footnote 20.

Eng. -Carlill v. Carbolic Smoke Ball Co., 1 Q.B. 256 (C.A.1893).

Wash. - Baxter v. Ford Motor Co., 168 Wash. 456, 12 P.2d 409 (1932) , after remand, 179 Wash. 123, 35 P.2d 1090 (1934) .

A unilateral contract in a sales context was found in B & D Appraisals v. Gaudette Machinery Movers, Inc., 733 F.Supp. 505 (D.R.I.1990) , citing this section.

(n21)Footnote 21. See § 260 post.

(n22)Footnote 22.

U.S. - Warren v. Confederation Life Ass'n, 401 F.2d 487 (1st Cir.1968) .

Neb. - General Credit Corp. v. Imperial Casualty & Indemnity Co., 167 Neb. 833, 95 N.W.2d 145 (1959) .

Pa. - Rittenhouse Found., Inc. v. Lloyds London, 443 Pa. 161, 277 A.2d 785 (1971) .

(n23)Footnote 23.

Mo. - Coffman Indus., Inc. v. Gorman-Taber Co., 521 S.W.2d 763 (Mo.App.1975) .

Wis. - Brown v. Hammermill Paper Co., 88 Wis.2d 224, 276 N.W.2d 709 (1979) .

It may be observed that a release discharges rather than creates obligations. However, because it is a consensual transaction, it is often assimilated to a contract. A release from liability given in advance of an injury-threatening event is a promise looking to a performance. See Dodson v. Stevens Transport, Div. of Stevens Foods, Inc., 776 S.W.2d 800 (Tex. App.1989) .

(n24)Footnote 24. ''Whenever circumstances arise in the ordinary business of life in which if two persons were ordinarily honest and careful the one of them would make a promise to the other, it may properly be inferred that both of them understood that such a promise was given and accepted.'' Ex parte Ford, 16 Q.B.D. 305, 307 (1885). In Mapes v. Sidney, Cro.Jac. 683 (1623), the defendant promised to pay the debt of J.S. to the plaintiff in consideration that the plaintiff would forbear to sue J.S. Plaintiff alleged that he forbore per magnum tempus. Winch and Hutton, JJ., thought this bilateral, the plaintiff having promised to forbear forever. Hobart, C.J., thought it unilateral, but that the plaintiff had forborne sufficiently for acceptance; he said, ''without express words he is not chargeable by promise.'' Similar contracts were held to be bilateral in Therne v. Fuller, Cro.Jac. 396 (1616); Cowlin v. Cook, Latch, 151 (1626). That Mr. Justice Holmes was not unwilling to discover the implication of a promise on evidence that seems not any too strong, see Wheeler v. Klaholt, 178 Mass. 141, 59 N.E. 756 (1901) ; Martin v. Meles, 179 Mass. 114, 60 N.E. 397 (1901) .

Where a promise is given by the offeror, with a proviso or condition attached, the fulfillment of which requires action by the offeree, not only is it frequently inferred that such action is the intended consideration for the promise, but it is also inferred that the offeree has promised that the action shall take place. Dunton v. Dunton, 18 Vict. L. R. 114 (1892); Jamieson v. Renwick, 17 Vict. L. R. 124 (1891); Lewis v. Atlas Mut. Life Ins. Co., 61 Mo. 534 (1876) .

There is a discussion of unilateral and bilateral contracts, following the Restatement, Contracts, of the American Law Institute, in Abbott v. Arkansas Utilities Co., 165 F.2d 339 (8th Cir.1948).

(n25)Footnote 25. 215 F.2d 503 (3d Cir.1954) .

(n26)Footnote 26. 107 F.Supp. 508 (E.D.La.1952) , modified, 206 F.2d 5, 41 A.L.R.2d 762 (5th Cir.).