Understanding Counteroffers and Expiration Dates

A counteroffer is a new offer; it is not an amendment of the original offer. Under the Restatement of Contracts, “an offeree’s power of acceptance is terminated by his making of a counter-offer, unless the offeror has manifested a contrary intention or unless the counter-offer manifests a contrary intention of the offeree.” In effect, that means if you make a counteroffer that states your terms and says “this counteroffer does not reject the original offer,” there are suddenly two balls in the air. E.g. Buyer makes offer to Seller and Seller counteroffers with “does not reject original offer” language, there is now a Buyer->Seller offer that can be accepted by Seller at any time and a Seller->Buyer counteroffer that can be accepted at any time. The complexities that that creates is why the default stance of counteroffers within the common law is “a counteroffer rejects the underlying offer and supplements it with something new, the counter-offer.” As a new offer in its own right, the counter-offer will typically have its own timeframe for acceptance, or it can incorporate the original offer’s timeframe if the counterofferor so chooses.

Consider the following examples, assuming there is an Offer expires on Monday, the 19th:

1. Counteroffer sent on the 15th with the traditional “all terms and conditions in the above offer are the same” language and no mention of any other expiration date.
   • Expiration date of the counteroffer is now the 19th. It has absorbed that term from the original offer. The original offer would be treated as rejected.
2. Counteroffer sent on the 20th with the traditional “all terms and conditions in the above offer are the same” language, and the counteroffer form intentionally establishes a new “counteroffer deadline” for the counteroffer as the 25th. There would be a conflict between the deadline trawled from the general provision saying “incorporate all other stuff from the earlier offer” and the new counteroffer deadline. ORS 42.240 notes that when there is an inconsistency between the general provision and the particular provision, the particular intent will control. Therefore, the newly established “counteroffer deadline” would be the controlling expiration date on the counteroffer. The original offer would be treated as rejected. [OR Form 2.1 operates in this way]
3. Counteroffer sent on the 20th with the traditional “all terms and conditions in the above offer are the same” language and no mention of any other expiration date.
   • The original offer would be treated as rejected. However, the counteroffer made while presently expired has two conclusions – either
     (1) the counteroffer has already lapsed when it arrived in the Buyer’s hands, and a signature by the Buyer on the already expired counteroffer would be treated as a subsequent counteroffer that the Seller could accept/reject, or
     (2) The counteroffer is genuinely ambiguous, and the courts would look to external communications and context to figure out what the parties actually meant for the deadline.
4. Counteroffer sent on the 20th with the traditional “all terms and conditions in the above offer are the same” language, and the counteroffer form intentionally establishes a new “counteroffer deadline” for the counteroffer to be accepted on, but through user error, the new counteroffer deadline provision is left blank

Similar to (3) above, with a counteroffer made while presently expired, but with three possible conclusions this time — either
(1) the counteroffer has already lapsed when it arrived in the Buyer’s hands, and a signature by the Buyer on the already expired counteroffer would be treated as a subsequent counteroffer that the Seller could accept/reject, or
(2) the counteroffer is genuinely ambiguous, and the courts would look to external communications and context to figure out what the parties actually meant for the deadline, or
(3) The counteroffer deadline would be a “reasonable amount of time” after it is delivered, based on Restatement (Second) of Contracts, section 41, on the grounds that “no time was specified” for when the offeree’s power of acceptance terminated. This option is the least likely of the three, however, as it requires the user to cherry-pick elements to ignore when applying the “all terms and conditions are the same” provision.

1. Counteroffer sent on the 15th with the traditional “all terms and conditions in the above offer are the same” language and language that reads “the expiration date on this counteroffer, the previous offer, and all future offers will now be the 25th.”
   • Likely would have the same outcome as (2) above, as the specific date of the 25thwould typically control over the general incorporated language from the original offer, and the counteroffer would expressly overwrite the original offer’s expiration date. Original offer would be treated as rejected, though potential argument can be brought that the counteroffer manifests a contrary intent of the counter-offeror to leave the original offer valid until at least the 19th. [OREF 003 and OREF 004 operate this way as of the 2026 updates].