Acceptance
An offer is only half of the bargain.
3. Acceptance
A contract arises if the offeree accepts the offer.
- To accept the offer, the offeree must manifest their intent to be bound by the offeror’s terms.
- The existence of an acceptance, like the existence of an offer, is judged by an objective standard. A reasonable person in the offeror’s position must understand the offeree’s statements or actions as communicating an acceptance.
- If one or more terms of a proposed bargain are left open or uncertain, that fact may contribute to showing that the communication is not an acceptance.
- The objective standard takes into account the existing relationship between the offeror and offeree, the prior communications between them, and the context of the transaction.
- Silence does not typically constitute acceptance, but can be acceptance in limited cases. In particular, silence can be acceptance if:
- Because of prior dealings, it is reasonable that the offeree should notify the offeror that acceptance is not intended, or
- The offer communicates that silence will be considered acceptance and the offeree intended silence to indicate assent.
- A purported acceptance will not create a contract unless the terms of the contract specified in the offer are reasonably certain. The terms of a contract are reasonably certain if they provide a basis for determining the existence of a breach and for giving an appropriate remedy.
- The Nevada FLE does not test the rules governing acceptance of an offer through performance (“[unilateral contracts]”). New lawyers should research those rules when the situation arises in practice, but the FLE will focus on the more common acceptances by promise.
- Except as provided below (Concept 4), the Nevada FLE does not test the UCC provisions governing acceptance.
A contract forms only when the offeree manifests assent to the offeror's terms. Judge that assent objectively, from the offeror's vantage point, then check the narrow silence rule and whether the terms are reasonably certain.
An offer is only half of the bargain. The deal is made when the offeree accepts, and to accept, the offeree has to manifest an intent to be bound by the offeror's terms. The offeree has to put the assent outward, into words or actions the world can read; a private decision that never leaves the offeree's head is not an acceptance.
Acceptance is judged by the same objective standard as an offer, but the angle flips. For an offer, you ask how a reasonable person in the offeree's position would read the offeror's words. For an acceptance, you ask whether a reasonable person in the offeror's position would understand the offeree's statements or actions as communicating acceptance. Same lens, opposite vantage point, read against the parties' prior dealings and the context. If terms are left open or uncertain, that openness can itself mean there was no acceptance.
- 1Where the parties' prior dealings make it reasonable that the offeree should speak up if acceptance is not intended.
- 2Where the offer itself states that silence will count as acceptance, and the offeree actually intended their silence to indicate assent. Both halves are required.
Finally, even a purported acceptance creates no contract unless the terms are reasonably certain, meaning a court has a basis to determine whether a breach occurred and to craft a remedy. If the deal is so vague that no one could say what counts as a breach or what the remedy would be, there is no contract, no matter how enthusiastically the offeree said yes.
An offeror cannot manufacture a contract out of the offeree's mere silence. A statement like "if I do not hear back I will assume you agree" does nothing on its own; it operates only if the offeree also intended the silence to mean assent.
The FLE tests acceptance by promise, not acceptance through performance, so the unilateral-contract route is outside the tested universe. And except for the mirror-image variation in the next concept, the UCC rules of acceptance are not tested here.
manifest assent (it has to go outward, not stay in your head)
objective standard judged from the offeror's position (offer flips to the offeree's position, acceptance flips back to the offeror's)
silence is not typically acceptance but can be in two limited cases
terms must be reasonably certain (a basis for breach and remedy)
did the offeree outwardly communicate assent that a reasonable person in the offeror's shoes would read as a yes, on terms certain enough to enforce?
The position flip is the trap. Offer = reasonable person in the offeree's position. Acceptance = reasonable person in the offeror's position. If an answer swaps those, eliminate it.
Silence: not typically, but can be.
prior dealings make it reasonable to speak up if not accepting
the offer says silence counts and the offeree actually intended silence to mean yes
An offeror's bare 'silence equals acceptance' line, standing alone, opens neither door.
A supplier and a restaurant have dealt with each other for two years. Every month the supplier emails a standing order confirmation, and the restaurant's practice, understood by both, is that it replies only when it wants to change or cancel; silence has always meant the order stands. One month the restaurant says nothing, then refuses the delivery, insisting it never accepted.
A magazine publisher mails a stranger an unsolicited subscription offer that reads, "If we do not hear from you within ten days, we will treat that as your acceptance and bill you." The recipient ignores it.
Suppose an offeree privately decides to accept but, in an email to the offeror, writes only, "Interesting, let me think it over." Even if the offeree truly meant yes inside, the test asks how a reasonable person in the offeror's position would read those words. That reasonable offeror would not understand "let me think it over" as a yes. No manifested acceptance, no contract; the offeree's private intent does not count.
An option judges acceptance by what a reasonable person in the OFFEREE'S position would understand, or otherwise frames the standard from the offeree's side or adds a requirement (like a signed writing) the standard does not impose.
Acceptance is judged from a reasonable person in the OFFEROR'S position, asking whether the offeree's words or actions communicate acceptance; the offeree-position framing belongs to offer, not acceptance.An absolute option saying silence can NEVER be acceptance, or that silence is ALWAYS acceptance, or that an offeree is bound by silence unless it expressly rejects.
Silence does not TYPICALLY constitute acceptance but CAN in two limited cases (prior dealings making non-acceptance the thing that must be spoken; or an offer stating silence counts plus an offeree who intended silence to assent).An option that treats an offeror's bare 'your silence will be acceptance' clause as enough by itself, or that hangs the answer on a true but irrelevant fact (the offeror shipped, the offeree kept the mailing).
The silence-counts clause operates only if the offeree also intended silence to assent; an offeror cannot unilaterally impose acceptance, and a true-but-irrelevant fact is not the operative reason.An option that reaches an outcome by relying on the offeree's private, uncommunicated intent rather than on an outward manifestation read from the offeror's position.
Acceptance requires a MANIFESTED assent judged objectively from the offeror's vantage point; secret intent does not control, and where silence is the agreed manifestation, that silence is the communication.An option that finds a contract from an enthusiastic 'yes' even though the offer's terms are too indefinite, or that omits the reasonable-certainty threshold.
A purported acceptance creates no contract unless the terms are reasonably certain, supplying a basis for determining a breach and for giving an appropriate remedy.An option that imports a doctrine from the wrong place, such as a signature/writing requirement, or that treats the offeree's PERFORMANCE of the act as the tested acceptance.
The certainty defect is indefiniteness, not a missing writing; and the FLE tests acceptance by PROMISE, so acceptance through performance (the unilateral route) is excluded from scope.the stem hands you an offer and then asks whether the offeree's response (or non-response) locked in a deal.
did the offeree manifest assent outwardly, or is the 'acceptance' just a private state of mind?
from whose vantage are you reading the words, because the standard is the reasonable person in the offeror's position, not the offeree's, so distrust any choice that flips the angle.
if the offeree stayed silent, ask which of the two limited doors is open: prior dealings making it reasonable to speak up if not accepting, or an offer that says silence counts and an offeree who actually intended silence as assent; a bare 'your silence is acceptance' line from the offeror, alone, opens neither.
are the offer's terms reasonably certain enough to determine a breach and a remedy, or is the bargain too open to enforce.
and if the facts have the offeree accepting by doing the act rather than promising, that is the excluded performance route; do not key it as the tested acceptance.
A produce supplier and a restaurant had dealt with each other for two years under a standing arrangement. Each month the supplier sent the restaurant a written confirmation of the usual order, and under their settled practice, understood by both sides, the restaurant replied only when it wanted to change or cancel; otherwise its silence meant the order stood. One month the supplier sent the usual confirmation, the restaurant said nothing, and the supplier prepared the shipment as always. The restaurant then refused the delivery, asserting that because it never replied it had never accepted.
Did the restaurant's silence constitute an acceptance?
A magazine publisher mailed an unsolicited subscription offer to a consumer with whom it had never dealt before. The mailing stated, in bold print, 'If we do not hear from you within ten days, we will treat your silence as acceptance and begin billing you.' The consumer glanced at the mailing, had no interest in subscribing, threw it away, and did nothing further. The publisher began sending issues and demanded payment, pointing to the language in its own offer.
Did the consumer's silence constitute an acceptance?
A property owner offered to sell a parcel to a developer on stated terms and asked for a clear answer. The developer privately decided it wanted the parcel, but in its only reply to the owner it wrote, 'Interesting proposal, we will need to think this over and get back to you.' The developer never sent any further word. Later, when the owner sold the parcel to someone else, the developer claimed a contract had formed because it had inwardly resolved to accept.
Is the developer's reply likely to be treated as an acceptance?
A homeowner emailed a contractor, 'I would like you to do some remodeling work on my house at a fair price sometime next year; let me know.' The contractor emailed back, 'Sounds great, I accept, count me in.' Nothing in the exchange identified what work would be done, what the price would be, or when performance would occur. When the contractor never appeared, the homeowner sued, claiming the contractor's enthusiastic reply formed a binding contract.
Did the contractor's reply create an enforceable contract?
A wholesaler and a hardware store had a long-running supply relationship in which the wholesaler periodically wrote to offer a new lot of goods, and the store's established practice, known to both, was to stay silent when it wanted the lot and to write back only to decline. The wholesaler offered a new lot on its usual terms; the store, intending to take it, said nothing, exactly as their practice required. The wholesaler shipped, and the store then claimed that silence can never form a contract.
Did the store's silence constitute an acceptance?