The Mirror Image Acceptance
Episode #5 of the course Contract basics: Let’s make a deal! by James Wong
Yesterday, we learned about offers. Today, we’re staying granular by looking at the second of the four required elements: the mirror-image acceptance.
Let’s start with a certain offer: Wally says, “Mow my lawn and I’ll pay you $25.”
There are only two ways to accept an offer: either with another promise (e.g., “I promise to mow your lawn if you promise to pay me $25”) or by performance (“I mowed the lawn, so where’s my $25?”).
The Mirror Image Rule
Surprisingly under the common law, it’s not that easy to accept an offer to form a valid binding contract.
Your acceptance could fail because the offer lapsed (say, if you mow the lawn a month later) or because it was advertising (in the case we’re using in this lesson, it’s not advertising). Most usually, the acceptance was faulty and no binding contract formed because of the wording of the return promise.
Under the common law, the acceptance has to “mirror” the offer. That is, the words of the return promise has to exactly match the offer’s wording: “I’ll mow your lawn, Wally, if you pay me $25.” So, “I’ll do it for $30,” is not an acceptance. Even, “I’ll do it if you pay me $25 first,” may not be acceptable either (pun intended). In these cases, the offeree has made a counter-offer. Now the original offer is terminated because it is rejected, and there is a new offer on the table. The ball is in Wally’s court.
The law sees this offer/counter-offer tennis match going on until one side loses interest, or both sides have a “meeting of the minds.” That is when they agree.
Forms of Acceptance
Incidentally, silence is not considered acceptance. In the case of Wally’s yard, if you don’t say anything, Wally is free to assume that you’ve rejected the offer, and he can make the offer to somebody else. If you then start trying to mow his lawn, you could be committing the tort of interfering with someone else’s contract.
That’s why it’s almost always better to accept through a promise rather than performance. If Wally’s offer was in writing, you could verbally respond with an “Okay,” and the contract is now binding on both parties. You could also sign Wally’s offer paper. You could even write him an email that says, “I accept.” All of these are good forms of accepting the contract.
There is a contract as soon as the offeror knows that there is a mirror-image acceptance. This can be verbal, in writing, by text, email, or video. In the case of legacy snail mail, the acceptance is good as soon as it is put into the mailbox.
So, is there a deal? If there is a certain offer and a mirror image acceptance, then we have the beginnings of a deal. At this stage, we have “a meeting of the minds,” or an agreement between the two parties. However, to have an enforceable contract, the agreement has to have consideration and the parties have to be capable of contracting. We’ll tackle these final two elements tomorrow.
See you then.
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