JCougar wrote: jlayne wrote:
BCLS wrote:Wouldnt section 62 (2) apply to a bi accepted by performance?
Good question. But I don't know for sure, because an offer looking to a bilateral contract is not inviting either performance or a promise. It is inviting a promise. The performance is construed as effecting a promise, but this is not what the offeror explicitly sought. It may be that 62(2) would apply, but I am not sure. Are all offers looking to bilateral contracts offers that invite acceptance by performance or promise? I thought that by their nature, bilateral contracts look to a promise ONLY.
The problem here is that you're conflating offers with contracts. Contracts can't look to a promise...it's only a contract if a promise or performance has been already returned. Only offers can. You can have an offer for
a bilateral contract, but if that's accepted by performance, it's a unilateral contract. An offer alone can't make it bilateral.
That's where we disagree, and until we have an authority that shows us one way or the other, we have to leave this question at that. If I'm wrong, I'll be happy to say so. But I don't, at least for now, accept that bilateral contracts cannot exist where the acceptance was constituted by performance. I don't even know how to make any sense out of Restatement 62(2) if what you say is correct is actually correct.
Restatement 2d 62:
1) Where an offer invites an offeree to choose between acceptance by promise and acceptance by performance, the tender or beginning of the invited performance or a tender of a beginning of it is an acceptance by performance [and according to your statement, it is a UNILATERAL CONTRACT because accepted by performance]
(2) Such an acceptance operates as a promise to render complete performance.
But as I said above, most jurisdictions say that in ANY unilateral contract where performance begins, the offeror is bound, but the offeree is NOT bound to complete. If 62(2) is talking about unilateral contracts, then these things contradict.