In the last message, we described the three critical pre- requisites for a binding contract: offer, acceptance, and consideration. We're bombarded with offers everywhere we look -- offers to send you some goods if you just send in $X, or "call this number NOW," and the like. A hard question the law often grapples with is: How do we know whether the offeree has ACCEPTED the offer?
Consider the following: you visit a web site of some information provider, and you are greeted with the following message:
"Welcome to XYZ.com. We're delighted you have visited our site. By visiting here, you have been entered as a subscriber to our newsletter, "XYZNews," which will be sent to you electronically every week at a cost of $5.00 per week. We will send you an invoice every month. You may cancel your subscription at any time."
Is there an enforceable contract here? Have you obligated to pay for any of the newsletters you receive?
Two strands of contract doctrine are relevant here. First, there is a general principle: THE OFFEROR IS MASTER OF HIS/ HER OFFER. That is, the person making the offer -- here, XYZ.com -- can frame the contours of the offer, and, in particular, can specify the method of acceptance by the offeree. So XYZ *is* permitted to say "For a subscription, click the "OK!" button," or "For a subscription, send an e-mail with the words 'You Bet!' to subscribe@xyz.com," or "For a subscription, call 1-800-123-4567 and give your name and address at the tone," and, if you take any of the actions specified, you will be deemed to have accepted XYZ's offer and to have obligated yourself to make the payments specified.
But there is another general principle that overrides the first: SILENCE CANNOT CONSTITUTE ACCEPTANCE OF AN OFFER. The offeror, in other words, cannot convert the offeree's inaction (silence) into manifestation of assent to the terms of the offer. So XYZ, in the above example, cannot compel you to pay for the newsletters, because your *failure* to "cancel your subscription" does not, and cannot by law, constitute acceptance of their offer.
authors:
| Larry Lessig | David Post | Eugene Volokh |
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