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A Quick Guide to Offer, Counter Offer, and Acceptance

Shaking hands after contract execution

Contracts play a crucial role in our personal and professional lives. Whether you’re entering into a business agreement, buying a property, or even accepting a new job, contracts define the terms and conditions of the agreement and provide legal protection for all parties involved. In this blog post, we will break down the different elements of a contract, focusing on the offer, counter offer, acceptance, and material terms that are essential in creating a legally binding agreement.

The Offer

The offer is the initial proposal made by one party to another. It is the building block of all contracts and expresses a willingness to enter into a specific agreement. It outlines the “material terms” of the contract, which can include things like the price, duration, and any other key promises made in the agreement. The offer must be clear, definite, and communicated to the other party or parties involved. By presenting a valid offer, the side offering to make a deal demonstrates an desire to create a binding contract. Importantly, an invitation to negotiate or a mere expression of interest is not considered a legally binding offer.

The Counter Offer

A counter offer is a response to the original offer, proposing different terms or conditions. It is both a rejection of the initial offer and a new offer. By modifying the original proposal, the party making the counter offer initiates a negotiation process. It is important to understand that a counter offer says “NO” to the initial offer, makes a new offer, and the roles of the parties reverse. The original offeror now has the option to accept or reject the counter offer.

The Acceptance

Acceptance is the unqualified agreement to the terms of an offer. It creates a binding contract and establishes the mutual intention of the parties involved to be bound by the terms they discussed. The person accepting must clearly and unequivocally accept the offer. This is usually done in the form requested in the offer (e.g., written, verbal, or electronic). Sometimes acceptance can also be done by performing the requested task or job. However, silence or inaction (doing nothing) generally does not constitute acceptance unless explicitly stated or inferred by the circumstances.

A Thumbs Up Emoji can Constitute an Acceptance!

Recently, a Canadian Judge ruled that sometimes something as simple as a “thumbs up” emoji can signify acceptance. The case was about a purported agreement where a farmer in Saskatchewan agreed to sell 87 metric tons of flax to a grain buyer in 2021. The buyer had signed the contract and texted a photo of it to the farmer, who had responded by texting back a “thumbs-up” emoji. The court found that to constitute a contract.

“This court readily acknowledges that a 👍 emoji is a nontraditional means to ‘sign’ a document but nevertheless under these circumstances this was a valid way to convey the two purposes of a ‘signature’ — to identify the signator” as Mr. Achter because he was texting from his cellphone number and “to convey Achter’s acceptance of the flax contract,”

Levenson, Michael “Canadian Court Rules Emoji Counts As A Contract Agreement”, New York Times, July 7, 2023

Another important thing to note about acceptance – unless you put a time limit on the offer, the other party can accept at any time. An offer can remain open until it is accepted or rejected with a counter offer. Courts typically find that a party must accept within a reasonable time, but that time frame can differ from court to court, state to state, and situation to situation. If you decide to rescind your offer, your rescission must be received by the other party before they accept your offer. Otherwise their acceptance is binding. Remember, if any new terms are introduced to the offer, that is not acceptance, that is a counteroffer.

Material Terms in an Offer, Counter Offer

Material terms are the essential elements of a contract. They typically define the rights, obligations, and conditions of the agreement. When you are making an offer or counter offer you should ensure that the material terms are clear. These terms vary depending on the nature of the contract but commonly include details such:

  • The Parties involved
  • Subject matter of the agreement
  • Definition of goods and services being provided
  • Payment terms, i.e. how much is being paid for each item?
  • Delivery requirements
  • Timeframe for performance
  • Any other specific conditions or contingencies

However, if the material terms are not clearly defined and agreed upon by all parties, a court could find that the contract is not valid or enforceable. Check out our blog and video on the material terms of a contract for more information.

Canadian Court Decides That An Emoji Can Constitute a Contract!

Part 1 – The Court Ruling – Offer and Acceptance, a “Thumbs Up” Emoji can constitute acceptance.
Part 2 – Offer v. Counteroffer – Remember, a Counteroffer rejects the prior offer.

How Kaminsky Law Can Help

Contracts are the foundation of legal relationships and provide a helpful framework for conducting business and personal affairs. They can be simple or complex. Understanding the different elements of a contract, including the offer, counter offer, acceptance, and material terms, is crucial for ensuring clarity, avoiding disputes, and protecting your rights and interests.

Contracts should be drafted with care, if you need help with a contract, whether it’s drafting the document or understanding the terms, or you need a contract dispute lawyer, our experienced attorneys can help. We have assisted many clients in the Philadelphia and Bucks County area with their contract needs. Contact Kaminsky Law to help you navigate the contract process with confidence and ensure you are entering into agreements that are legally binding and beneficial.

You can also fill out a contact form on the side or bottom of the page, or call us for a free consultation at 215-876-0800.

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Aubrie Linder
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