Acceptance of a Bilateral Contract by Performance?

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CyLaw
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Re: Acceptance of a Bilateral Contract by Performance?

Postby CyLaw » Sat Dec 04, 2010 1:28 am

In the case where the offer required a return promise, even complete performace will not constitute an acceptance of the offer. (However, they may be able to recover under a quasi contract theory for unjust enrichment).

Restatement (Second) of Contracts § 58 (1981) wrote:§ 58. Necessity Of Acceptance Complying With Terms Of Offer

An acceptance must comply with the requirements of the offer as to the promise to be made or the performance to be rendered.

. . .

Illustrations:

. . .

2. A offers to pay B $100 for plowing Flodden field, and states that acceptance is to be made only by posting a letter before beginning work and before the next Monday noon. Before Monday noon B completes the requested plowing and mails to A a letter stating that the work is complete. There is no contract.

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JazzOne
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Re: Acceptance of a Bilateral Contract by Performance?

Postby JazzOne » Sat Dec 04, 2010 1:32 am

CyLaw wrote:In the case where the offer required a return promise, even complete performace will not constitute an acceptance of the offer. (However, they may be able to recover under a quasi contract theory for unjust enrichment).

Restatement (Second) of Contracts § 58 (1981) wrote:§ 58. Necessity Of Acceptance Complying With Terms Of Offer

An acceptance must comply with the requirements of the offer as to the promise to be made or the performance to be rendered.

. . .

Illustrations:

. . .

2. A offers to pay B $100 for plowing Flodden field, and states that acceptance is to be made only by posting a letter before beginning work and before the next Monday noon. Before Monday noon B completes the requested plowing and mails to A a letter stating that the work is complete. There is no contract.

Quasi contract. That's what I was thinking of. I knew quantum meruit wasn't quite right. I think quantum meruit is the measure of damages for quasi contract. Been a long time. Thanks.

CyLaw
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Re: Acceptance of a Bilateral Contract by Performance?

Postby CyLaw » Sat Dec 04, 2010 1:35 am

JazzOne wrote:Quasi contract. That's what I was thinking of. I knew quantum meruit wasn't quite right. I think quantum meruit is the measure of damages for quasi contract. Been a long time. Thanks.


Our book interchanges quantum meruit, quasi contract, and contract implied-in-law all the time. They might have technical meaning differences, but it seems they are often used interchangeably by judges.

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JCougar
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Re: Acceptance of a Bilateral Contract by Performance?

Postby JCougar » Sat Dec 04, 2010 1:35 am

CyLaw wrote:In the case where the offer required a return promise, even complete performace will not constitute an acceptance of the offer. (However, they may be able to recover under a quasi contract theory for unjust enrichment).

Restatement (Second) of Contracts § 58 (1981) wrote:§ 58. Necessity Of Acceptance Complying With Terms Of Offer

An acceptance must comply with the requirements of the offer as to the promise to be made or the performance to be rendered.

. . .

Illustrations:

. . .

2. A offers to pay B $100 for plowing Flodden field, and states that acceptance is to be made only by posting a letter before beginning work and before the next Monday noon. Before Monday noon B completes the requested plowing and mails to A a letter stating that the work is complete. There is no contract.


That's a little bit different than the example we have been talking about, though. In your example, they're specifically performing differently than what is said in the promise. What we're talking about is where the offeror is simply looking for any indication of acceptance that constitutes a return promise.

I'm not really sure if that makes a difference or not anymore.

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JCougar
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Re: Acceptance of a Bilateral Contract by Performance?

Postby JCougar » Sat Dec 04, 2010 1:37 am

CyLaw wrote:
JazzOne wrote:Quasi contract. That's what I was thinking of. I knew quantum meruit wasn't quite right. I think quantum meruit is the measure of damages for quasi contract. Been a long time. Thanks.


Our book interchanges quantum meruit, quasi contract, and contract implied-in-law all the time. They might have technical meaning differences, but it seems they are often used interchangeably by judges.


I think quantum meruit is the legal principle that both enforces an implied-in-law contract (also known as a quasi-contract) and justifies Restitution damages.

jlayne
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Re: Acceptance of a Bilateral Contract by Performance?

Postby jlayne » Sat Dec 04, 2010 1:38 am

CyLaw wrote:In the case where the offer required a return promise, even complete performace will not constitute an acceptance of the offer. (However, they may be able to recover under a quasi contract theory for unjust enrichment).

Restatement (Second) of Contracts § 58 (1981) wrote:§ 58. Necessity Of Acceptance Complying With Terms Of Offer

An acceptance must comply with the requirements of the offer as to the promise to be made or the performance to be rendered.

. . .

Illustrations:

. . .

2. A offers to pay B $100 for plowing Flodden field, and states that acceptance is to be made only by posting a letter before beginning work and before the next Monday noon. Before Monday noon B completes the requested plowing and mails to A a letter stating that the work is complete. There is no contract.


We're dancing in circles, methinks. What you say would only be true if the offer expressly limited the acceptance of the bilateral contract to a verbal (or written) promise, which in itself does not make any sense at all, since performance is what both the unilateral and bilateral contracts are ultimately seeking. The promise is just a way of ensuring the performance.

jlayne
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Re: Acceptance of a Bilateral Contract by Performance?

Postby jlayne » Sat Dec 04, 2010 1:49 am

JazzOne wrote:
CyLaw wrote:In the case where the offer required a return promise, even complete performace will not constitute an acceptance of the offer. (However, they may be able to recover under a quasi contract theory for unjust enrichment).

Restatement (Second) of Contracts § 58 (1981) wrote:§ 58. Necessity Of Acceptance Complying With Terms Of Offer

An acceptance must comply with the requirements of the offer as to the promise to be made or the performance to be rendered.

. . .

Illustrations:

. . .

2. A offers to pay B $100 for plowing Flodden field, and states that acceptance is to be made only by posting a letter before beginning work and before the next Monday noon. Before Monday noon B completes the requested plowing and mails to A a letter stating that the work is complete. There is no contract.

Quasi contract. That's what I was thinking of. I knew quantum meruit wasn't quite right. I think quantum meruit is the measure of damages for quasi contract. Been a long time. Thanks.


Quantum Meruit would be the principle by which someone could collect, let's say, for building a wall on someone's property, that would benefit that person. They see it being built; they don't do anything to stop it. The person should have told the other person to stop building the wall since an objective person would believe that such work would require compensation. It would be unjust enrichment to allow the work to go unpaid for. So even without an actual contract, the one building the wall could sue based on quantum meruit.

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JCougar
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Re: Acceptance of a Bilateral Contract by Performance?

Postby JCougar » Sat Dec 04, 2010 1:55 am

jlayne wrote:Quantum Meruit would be the principle by which someone could collect, let's say, for building a wall on someone's property, that would benefit that person. They see it being built; they don't do anything to stop it. The person should have told the other person to stop building the wall since an objective person would believe that such work would require compensation. It would be unjust enrichment to allow the work to go unpaid for. So even without an actual contract, the one building the wall could sue based on quantum meruit.


If I'm not wrong (and I'm getting tired), you could even construe the above scenario as "acceptance by silence" and you could have an actual contract -- which means you could sue for reliance, which is usually more than restitution (quantum meruit). Seeing the work being done and not doing anything to stop it usually counts for acceptance, and such can be construed as an "implied in fact" contract. Quantum meruit (implied in law) is mostly for when there is no contract at all, or if for some reason, suing "off the contract" is beneficial to you, such as in a losing contract scenario.

jlayne
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Re: Acceptance of a Bilateral Contract by Performance?

Postby jlayne » Sat Dec 04, 2010 1:59 am

JCougar wrote:
jlayne wrote:Quantum Meruit would be the principle by which someone could collect, let's say, for building a wall on someone's property, that would benefit that person. They see it being built; they don't do anything to stop it. The person should have told the other person to stop building the wall since an objective person would believe that such work would require compensation. It would be unjust enrichment to allow the work to go unpaid for. So even without an actual contract, the one building the wall could sue based on quantum meruit.


If I'm not wrong (and I'm getting tired), you could even construe the above scenario as "acceptance by silence" and you could have an actual contract -- which means you could sue for reliance, which is usually more than restitution (quantum meruit). Seeing the work being done and not doing anything to stop it usually counts for acceptance, and such can be construed as an "implied in fact" contract. Quantum meruit (implied in law) is mostly for when there is no contract at all, or if for some reason, suing "off the contract" is beneficial to you, such as in a losing contract scenario.


I agree that this could be an example of acceptance by silence. I had that in mind.

CyLaw
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Re: Acceptance of a Bilateral Contract by Performance?

Postby CyLaw » Sat Dec 04, 2010 2:01 am

jlayne wrote:
CyLaw wrote:In the case where the offer required a return promise, even complete performace will not constitute an acceptance of the offer. (However, they may be able to recover under a quasi contract theory for unjust enrichment).

Restatement (Second) of Contracts § 58 (1981) wrote:§ 58. Necessity Of Acceptance Complying With Terms Of Offer

An acceptance must comply with the requirements of the offer as to the promise to be made or the performance to be rendered.

. . .

Illustrations:

. . .

2. A offers to pay B $100 for plowing Flodden field, and states that acceptance is to be made only by posting a letter before beginning work and before the next Monday noon. Before Monday noon B completes the requested plowing and mails to A a letter stating that the work is complete. There is no contract.


We're dancing in circles, methinks. What you say would only be true if the offer expressly limited the acceptance of the bilateral contract to a verbal (or written) promise, which in itself does not make any sense at all, since performance is what both the unilateral and bilateral contracts are ultimately seeking. The promise is just a way of ensuring the performance.


Maybe we are talking about two different things. I'm just arguing against someone's previous statement that full performance can mean acceptance for a offer that requires a return promise. The point of the illustration in § 58 is to explicitly reject the old rule that where a promise is required, full performance will constitute an acceptance.

Granted, § 32 still applies, so if there is doubt, then one can accept by performance or promise, but where a promise is requested as the sole means of acceptance, full performance will not equal acceptance.

Restatement (First) of Contracts § 63 (1932) wrote:§ 63. Effect Of Performance By Offeree Where Offer Requests Promise
If an offer requests a promise from the offeree, and the offeree without making the promise actually does or tenders what he was requested to promise to do, there is a contract, subject to the rule stated in § 56, provided such performance is completed or tendered within the time allowable for accepting by making a promise. A tender in such a case operates as a promise to render complete performance.
...
1. A writes to B, “I will pay you $100 for plowing Flodden field, if you will promise me by next Monday to finish the work before the following Saturday.” B makes no promise but completes the requested plowing before the following Monday and promptly notifies A that he has done the work. There is a unilateral contract. There would be no contract had B finished the plowing on Tuesday, having made no promise.


Restatement (Second) of Contracts § 58 (1981) wrote:The rule of former § 63 is abandoned

ogurty
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Re: Acceptance of a Bilateral Contract by Performance?

Postby ogurty » Sat Dec 04, 2010 4:25 am

CyLaw wrote:
jlayne wrote:
CyLaw wrote:In the case where the offer required a return promise, even complete performace will not constitute an acceptance of the offer. (However, they may be able to recover under a quasi contract theory for unjust enrichment).

Restatement (Second) of Contracts § 58 (1981) wrote:§ 58. Necessity Of Acceptance Complying With Terms Of Offer

An acceptance must comply with the requirements of the offer as to the promise to be made or the performance to be rendered.

. . .

Illustrations:

. . .

2. A offers to pay B $100 for plowing Flodden field, and states that acceptance is to be made only by posting a letter before beginning work and before the next Monday noon. Before Monday noon B completes the requested plowing and mails to A a letter stating that the work is complete. There is no contract.


We're dancing in circles, methinks. What you say would only be true if the offer expressly limited the acceptance of the bilateral contract to a verbal (or written) promise, which in itself does not make any sense at all, since performance is what both the unilateral and bilateral contracts are ultimately seeking. The promise is just a way of ensuring the performance.


Maybe we are talking about two different things. I'm just arguing against someone's previous statement that full performance can mean acceptance for a offer that requires a return promise. The point of the illustration in § 58 is to explicitly reject the old rule that where a promise is required, full performance will constitute an acceptance.

Granted, § 32 still applies, so if there is doubt, then one can accept by performance or promise, but where a promise is requested as the sole means of acceptance, full performance will not equal acceptance.

Restatement (First) of Contracts § 63 (1932) wrote:§ 63. Effect Of Performance By Offeree Where Offer Requests Promise
If an offer requests a promise from the offeree, and the offeree without making the promise actually does or tenders what he was requested to promise to do, there is a contract, subject to the rule stated in § 56, provided such performance is completed or tendered within the time allowable for accepting by making a promise. A tender in such a case operates as a promise to render complete performance.
...
1. A writes to B, “I will pay you $100 for plowing Flodden field, if you will promise me by next Monday to finish the work before the following Saturday.” B makes no promise but completes the requested plowing before the following Monday and promptly notifies A that he has done the work. There is a unilateral contract. There would be no contract had B finished the plowing on Tuesday, having made no promise.


Restatement (Second) of Contracts § 58 (1981) wrote:The rule of former § 63 is abandoned


That is a tiny tiny loophole that section 58 closes, because section 63 allowed the offeree to overpower the offeror, which American contract law will not do. Even the comment to 58 gives an example where performance explicitly requires a promise before work is begun - an offer which the overly formalistic offeror is privileged to make. But where the offer says acceptance ONLY by promise to deliver an item, and the offeree shows up with the item, the offeror is not privileged to reject just because the offeree never said "I promise". This is too formulaic, and courts will construe the delivery as being exactly the same as the promise.

Even section 58 doesn't limit "acceptance only by promise" to "acceptance only by promissory words". Unless, of course, the offer says "only promissory words".




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