12. Acceptance and pre-contractual negotiations

Question 1

Define acceptance

Answer 1

Any form of statement or conduct by the offeree is

an acceptance if it indicates assent to the offer.

Silence or inactivity does not it itself amount to acceptance.

Question 2

Characteristics of acceptance

Answer 2

It must be:

• unconditioned, i.e. compliant with any conditions set by the offeror
• if it does not comply with the offer, the original offer is terminated and the former offeror (currently offeree) can now accept the counter-offer of the former offeree (currently offeror): the two sets of conditions do not merge

Question 3

Flow process

Answer 3

Offer -> counteroffer -> acceptace -> contract

Question 4

Define battle of forms

Answer 4

arises when a contract is negotiated between commercial parties, each of them attempting to make its own non-negotiable standard terms of business prevail upon those of the counterpart (comp edge?)

Question 5

Define last shot rule

Answer 5

the last ‘shot’ is the one who wins, because it amounts to the acceptance of a prior offer

Question 6

Conditions to conclude the contract

Answer 6

• issued (and dispatched) in the form (or method) possibly required by the offeror: e.g. in writing, by registered or recorded delivery, etc.
• not delayed: if the offeror does not specify how long her/his offer remains open, it will lapse after a reasonable length of time has passed, unless the offeror does not waive the delay of the acceptance

Question 7

Time of formation of contract in civil law

Answer 7

the contract is concluded when the acceptance is notified to the offeror (knowledge rule)

Question 8

Time of formation of contract in common law

Answer 8

the acceptance is sent by post, the contract is concluded when the acceptance is posted (postal rule)

Question 9

Time of conclusion of contract

Answer 9

If an acceptance has been dispatched by the offeree the contract is concluded when the acceptance reaches the offeror - the knowledge rule

Question 10

Civil law and its benefits for the addressee

Answer 10

civil law jurisdictions stipulate that offers and acceptances (as well as other unilateral acts) produce their legal effects only if and when they are notified to the recipient.

Question 11

Does the ‘knowlege rule’ apply to contracts concluded directly through the offeree’s performance?

Answer 11

• If according to the offeror’s request or to the nature of the transaction or to the usages, the offerree shall perform regardlessly of her/his acceptance, the contract is concluded at the time and at the place in which her/his performance has been commenced
• the offeree must promtly give notice of the beginning of the performance to the other party, otherwise she/he is liable for damages

Question 12

Case study: The Postal Rule

Answer 12

Adams vs. Lindsell