But if harry had instead responded to peters offer by

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Unformatted text preview: 88.indd 74 10/26/12 5:42 PM Section 4.3 Acceptance CHAPTER 4 Example 4.17. Peter offers to sell a painting of an Irish landscape that he did on vacation last year for $350. Harry responds: “I accept. Put it in one of those pretty gilt frames.” Harry and Peter have a contract, and Harry is committed to buying the painting. But Peter does not have to put it in the gilt frame. But if Harry had instead responded to Peter’s offer by saying, “I accept as long as you put it in a gilt frame,” there would be a counteroffer by Harry and thus no contract at this point. This is because Harry has explicitly tied his acceptance to Peter’s agreeing to the additional term. When conditional language such as “I accept as long as/but only if/contingent upon” is used in this way, the result is a counteroffer. However, if both parties are merchants (individuals engaged in the business of buying and selling goods of the type involved in the contract), the additional terms in the acceptance become part of the contract unless: 1. they are objected to within a reasonable time of receipt of the acceptance; 2. the additional terms materially alter the contract; or 3. the offer specifically limits acceptance to the stated terms. Note that whether the statement is an acceptance or a counteroffer has not changed for the merchants; we are only dealing here with the terms of the contract. Consider these examples: Example 4.18. Peter, of Peter’s Famous Art Gallery, offers to sell a certain painting for $350. Harry, of Harry’s Other Famous Art Gallery, responds: “I accept, as long as you deliver by Friday.” There is no contract because Harry made a counteroffer. Example 4.19. Peter makes the same offer. This time Harry says, “I accept. Deliver to my place Friday.” They have a contract. Because they are both merchants, Peter must deliver to Harry as noted. Example 4.20. Same as number 2 above, except Peter, who doesn’t want to deliver, promptly calls Harry and says, “Thanks for buying the painting, but you have to pick it up.” Because as the offeror he has...
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