Counteroffers are a bundled concept at law. According to the Restatement Second of Contracts § 39, “A counteroffer is an offer made by an offeree to his or her offeror relating to the same matter as the original offer and proposing a substituted bargain differing from that proposed by the original offer. An offeree’s power of acceptance is terminated by his or her making of a counteroffer, unless the offeror has manifested a contrary intention or unless the counteroffer manifests a contrary intention of the offeree.”
What this means is: when Seller makes a normal counteroffer, Seller has done two things: (1) Seller rejected the previous Buyer offer/counteroffer, and (2) Seller made a fresh new offer for the Buyer to accept or reject. It’s easiest to illustrate with an example.
- Step 1. Buyer makes an offer to Seller.
- Step 2. Seller sends a counteroffer to Buyer [simultaneously making an offer and rejecting the Buyer’s offer].
- Step 3. Buyer rejects Seller’s counteroffer.
- Step 4. Seller cannot now go back and accept the Buyer’s Step 1 offer.
Oregon REALTORS® contracts state, “The Parties accept all of the terms and conditions contained in the [previous] Offer or Counteroffer with the following changes:” This means that a counteroffer “incorporates” all of the language from the previous offer or counteroffer. If there is any overlap between previous offer or counteroffer terms, the most recent counteroffer’s language will be the official terms of the agreement.
If an offer said, “$100,000 and no inspection,” a counteroffer will use those same terms unless stated otherwise. If the counteroffer said, “Purchase price to be $150,000 and yes to inspections,” the terms would be “$150,000 and yes to inspections.”
By contrast, if the offer said “$100,000 and no inspection” and the counteroffer only said “also no appraisal!” the terms would be “$100,000, no inspection and no appraisal!”