Canadian Business Contracts Handbook. Nishan Swais

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      2.2a No intention to accept

      Where there is no intention to offer, there is no offer at law. The same rule applies to acceptance. Where there is no intention to accept, there is no acceptance at law.

      Returning to our earlier example: Suppose that you were intending to offer your car for sale to your friend when you said that it would be ideally suited to his business needs. Now suppose that your friend agreed that the car was exactly what he required. Has he accepted your offer?

      The answer to that question comes down to whether we can infer an intention to accept your offer on the part of the offeree (i.e., your friend) when he agreed with your assessment about his needs. By agreeing with you, he might simply have been expressing an opinion about your recommendation, intending to communicate that he will go out and buy a car similar to yours. To be sure, it’s not entirely clear whether he accepted your offer, but common sense and most judges tell us that the answer is no.

      Let’s take the question of intention to accept an offer one step further. Suppose you had come right out to your friend and said, “I’ll sell you my car for $10,000.” What could we infer about your friend’s intention if he responded, “I’ll think about it”? In that case, can it reasonably be said that the offeree’s intention is to communicate acceptance of the offer? Again, common sense tells us no. Clearly, the offeree’s mind is not made up.

      Now suppose that, in response to your offer, your friend said, “Sounds good,” or “Awesome,” or “I’ve been waiting for you to finally sell it.” These answers would certainly tend to suggest that your friend intends to accept the offer. Can it be said for certain that he is accepting it? Not necessarily.

      After all, the intended meaning of “Sounds good” may have been, “Your offer strikes me as fair, but I’ll pass.” The intended meaning of “Awesome” might have been, “Wow, you’ve finally decided to sell your car. I hope you find a buyer.” Even a response as seemingly unambiguous as, “I’ve been waiting for you to finally sell it” might simply have been intended to mean, “I always thought you should rid yourself of that heap and get a new car for yourself.”

      As you can see, it is important to both the offeror and the offeree that acceptance be clearly communicated. In fact, courts require that acceptance be even more clearly communicated than an offer. The reason for that is simple: Offers are made all the time and it would be unfair to constantly burden offerees with proving that they didn’t accept an offer. Most of us would be tripping over ourselves just to ensure that we didn’t unintentionally sign up to the hundreds of unsolicited deals offered to us every day.

      Acceptance must be clearly and unambiguously communicated to the offeror by the offeree to be considered acceptance at law. “I will buy your car for $10,000” is the answer the offeror should be looking for before he or she starts to clean and prepare it for delivery to the offeree. That message is clear and unambiguous evidence of an intention to accept the offer.

      One final point to make about communicating acceptance is that in contract law, silence is not golden. While the law generally regards silence as rejection of an offer, an offeree may, in some circumstances, wish to specifically communicate to an offeror that he or she is not accepting the offer. This is the most certain way to ensure that there is no misunderstanding about the offeree’s intention. In other words, say “no” if you don’t want to accept an offer.

      2.2b Conditional offers

      An offeror may stipulate one or more specific conditions as part of an offer. If that happens, then to accept that offer, the offeree must meet those conditions or the offeree’s acceptance will not be considered acceptance, at law.

      You, as the offeror, might say, “I offer to sell you my car for $10,000 on the condition that you accept my offer before Sunday at noon.” In this case, as in all cases, the offeree may accept or reject the offer. In order to accept your offer, the offeree must meet your condition. Specifically, acceptance must occur before Sunday at noon.

      This is known as a conditional offer. In general, conditional offers can set all kinds of conditions for the offeree to meet. Unless the conditions are met, acceptance of the offer will not be valid. With that in mind, it should be obvious that an offeror can impose any number and type of conditions.

      For example, you as the offeror might have said, “I offer to sell you my car for $10,000 on the conditions that you accept my offer before Sunday at noon and notify me of your acceptance in writing.” The offeree must now jump through two hoops to validly accept the offer: Accept before Sunday at noon and do so in writing. If these conditions are not met, the law will not deem acceptance to have occurred.

      There are three additional points worth making regarding conditional offers: waiving conditions, changing conditions, and no conditions.

       Waiving conditions

      An offeror can waive one or more of the conditions he or she is imposing as part of the offer. In so doing, the offeror is telling the offeree that the waived conditions no longer must be met in order for acceptance to be valid.

      Returning to our example, you, as the offeror, may waive the condition that acceptance must occur before Sunday at noon. You may have decided that you are willing to have your offer left open for acceptance until after that time. In that case, the offeree no longer needs to meet that condition because, legally speaking, it no longer applies. You could do the same regarding the condition that acceptance be communicated in writing. You may have decided that you are willing to rely on your friend’s verbal acceptance of your offer.

      Note that only the offeror can waive the conditions he or she is imposing. The offeree cannot simply decide that the conditions do not apply. To ensure that the offeree understands this, most conditional offers state that the conditions are solely for the benefit of the person imposing them (in this case the offeror) and can only be waived by that person. (See Chapter 6, section 2.6 for a further discussion of contractual conditions.)

       Changing conditions

      Can an offeror change a condition of acceptance after an offer is made? The answer is yes, provided that the offeree agrees.

      As you can imagine, changing any condition after an offer has been made can be tricky. There are only three ways for an offeror to change a condition. The first way is to waive the condition, discussed above. The second way is to revoke the offer, discussed in section 2.2d. The third way is to obtain the offeree’s consent to change the condition.

      To obtain the offeree’s consent to change a condition, the offeror and offeree must agree on the change. For example, both the offeror and offeree may agree that the condition to communicate acceptance of the offer in writing before Sunday at noon will be changed to require that the acceptance be communicated before the preceding Saturday at noon or, perhaps, the following Monday at noon. Likely, the offeree won’t agree to the change to Saturday (because it would force his decision up by a day) but it is nevertheless something both offeror and offeree can agree to do.

      Of course, once an offeree has met a condition of acceptance, the offeror cannot change it. That would amount to “moving the goal posts” mid-game. If an offer was conditional on the offeree submitting a deposit of $50,000 and, in fact, the offeree submitted a deposit of $50,000, the offeror cannot then change the condition so that the deposit amount must be $75,000.

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