Restatement 2d 45: Tendering a beginning of performance when performance is bargained for makes an offer firm. UCC 2-206 (2): Commencing performance is a mode of acceptance unless the offeree does not inform the other party within a reasonable period of time that they’ve started. i.e. If you begin manufacturing the products you need to inform the buyer sooner rather than later. Acceptance by Silence (Default): Silence is not a reasonable mode of acceptance because it places an undue burden. Acceptance by Silence (Exception): When you take the benefit of offered services with reasonable opportunity to reject them then silence can be considered acceptance. Russell v. Texas co: Russell bought land that Texas Co. occupied/ contracted and Russell sent out a revocable license to Texas Co. in order for them to continue using the land. Offer stated that Texas Co.’s continued use of the land will constitute acceptance. Texas Co. did not intend to accept, but did not communicate that with Russell and continued using the land to their benefit. 23
o Rule: Where the offeree exercises dominion over things which are offered to him, such exercise of dominion, in the absence of other circumstances showing a contrary intention, is an acceptance. Here, offeree exercised dominion before communicating contrary intention, so that constituted acceptance. Restatement 2d 69: (a) “[silence is acceptance] where an offeree takes the benefit of offered services with reasonable opportunity to reject them and reason to know that they were offered with the expectation of compensation.” Side Note from Goodrich : When given the option of treating a party as in violation of a contract or as a tortfeasor the courts choose to enforce contract instead. ( Restatement 1st 72(2 ) p. 256) Silence can be acceptance when previous dealings have established that notification of acceptance isnot necessary. Ammons v. Wilson Co: Ammons and Wilson has an on-going business relationship where Ammons would place orders with Wilson and the orders would be accepted and shipped (without notification) within one week. When Ammons gave Wilson’s travelling salesperson an order, he received no response until 12 days leter when he was informed Wilson rejected it. o In cases like this it is a question of fact (for the jury) whether or not the delay in response (12 days vs. 1 week) constitute an implied acceptance. o Purchase orders are offers o Rule: When an offeree fails to reply to an offer, his silence or inaction operates as an acceptance where, because of previous dealings or otherwise, the offeree has given the offeror reason to understand that the silence or inaction is intended as a manifestation of assent and the offeror does so understand. Restatement 2d 69 (c): “where because of previous dealings it is reasonable that the offeree should notify the offeror if he does not intend to accept” UCC 1:303 (b): course of dealings equals common understanding — sequence of conduct 2 Part Test for Silence Acceptance
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