AMI 2405 Definition—Offer and Acceptance

Use this instruction when AMI 2402 is given.

Use the bracketed sentence in the second paragraph if the offer prescribes specific means of acceptance.

Insert the third paragraph when warranted by the evidence. If the third paragraph is inserted, use the sentence in parentheses if one party alleges that the other party knowingly accepted the benefits of a proposed contract for services. If a case contains another situation recognized by law in which silence and inaction constitute acceptance, an appropriate sentence should be substituted for the sentence in parentheses.

“An offer is the manifestation of willingness to enter into a bargain, so made as to justify another person in understanding that his assent to the bargain is invited and will conclude it.” Aon Risk Services, Inc. v. Meadors, 100 Ark. App. 272, 281, 267 S.W.3d 603, 609 (2007). See also ERC Mortg. Group, Inc. v. Luper, 32 Ark. App. 19, 795 S.W.2d 362 (1990) (quoting the same definition of offer from the Restatement (Second) of Contracts), overruled in part on other grounds, Mosley Machinery Co. v. Gray Supply Co., 310 Ark. 448, 837 S.W.2d 462 (1992). The definition used in this instruction is conceptually identical to the Restatement definition.

The definition of “acceptance” in this instruction is in accord with the Arkansas cases which require acceptance of the material terms of the offer. See Aon Risk Services, 100 Ark. App. at 283, 267 S.W.3d at 611 (“an acceptance must unconditionally agree to all the material provisions of the offer”); MDH Builders, Inc. v. Nabholz Constr. Corp., 70 Ark. App. 284, 289, 17 S.W.3d 97, 100–01 (2000) (same); ERC Mortgage, 32 Ark. App. at 23, 795 S.W.2d at 364 (quoting from Restatement (Second) of Contracts that the “acceptance of an offer is a manifestation of assent to the terms thereof made by the offeree in a manner invited or required by the offer”). An acceptance does not become a counteroffer merely by reciting terms that were implied in the original offer. See Byford v. Gates Bros. Lumber, 216 Ark. 400, 402–03, 225 S.W.2d 929, 930–31 (1950) (where offer required performance within a reasonable time, the “suggestion” in acceptance of ninety days for performance was not such a substantial change as to qualify the offer). But to be effective, an acceptance must be identical with the material terms of the offer. MDH Builders, supra. For additional discussion of the “mirror image” rule with respect to acceptances of offers, see the Comment to AMI 2409.

Acceptance of a contract may be accomplished by spoken words or conduct. See Childs v. Adams, 322 Ark. 424, 433, 909 S.W.2d 641, 645 (1995) (late acceptance of written offer, forming a counter-offer, which was accepted by the conduct of the party who made the original offer). Silence generally does not constitute an acceptance of an offer although silence may constitute acceptance in certain special circumstances. The Restatement (Second) of Contracts recognizes only three situations in which silence may constitute acceptance of a contract: (i) where the offeree takes the benefit of offered services with the reasonable opportunity to reject them and with reason to know they were offered with the expectation of compensation; (ii) where the offeror gives the offeree reason to understand that assent may be manifested by silence, and the offeree intends to accept by his silence; and (iii) where because of previous dealings it is reasonable that the offeree should notify the offeror if he does not intend to accept. Restatement (Second) of Contracts § 69 (1981).