“Acceptance,” according to a well respected legal journal, is “a voluntary act of the offeree whereby he exercises the power conferred upon him by the offer and thereby creates a set of legal relationships called a contract.” In plain English, that means acceptance transforms an offer into a contract. Acceptance also terminates the offeror’s power to revoke the offer. Taken together, these two aspects of acceptance (cutting off revocation and creating a contract) make acceptance a matter of supreme importance.
The law favors the voluntary apportionment of economic interests. The law, therefore, strives to make certain that individuals cannot avoid voluntary contracts nor be forced into involuntary ones. Generally, contract rules, and those regarding acceptance are no exception, are designed to enforce individual intent. Did the offeror intend to create the power of acceptance? Did the offeree intend to accept it? These are the kinds of intent questions upon which contract formation often turns.
Intent is, of course, notoriously hard to prove. To compensate, the law of contracts adopts what is called the “objective theory of contracts.” Under the objective theory, it is not what a person actually intends that matters, it is what a reasonable person in the same circumstances would reasonably believe they intended that matters. Applied to acceptance, the objective theory says that if the offeree makes the promissory acceptance requested they will be held to their acceptance whether they intended to accept or not unless the offeror knows or should know they did not intend to accept.
The enforcement balance between being bound to voluntary contracts but not to involuntary ones underlies most of the rule of acceptance. For instance, if the offeror makes an offer to two people (e.g., husband and wife), only those two people can accept. Acceptance cannot be transferred, even if performance later can. One person cannot “accept” for another unless the person accepting has the express authority to bind that person to the kind of contract being offered and expressly accepts on that person’s behalf.
Offers to husbands and wives signed by only the husband or only the wife are not uncommon in real estate. Mostly, the lack of acceptance by one of two joint offerees doesn’t become an issue because the offeree who did not accept intends to and does perform the contract. When, however, the lack of acceptance by one of two or more joint offerees becomes an issue, you can have a real mess. Generally, when the husband and wife are buyers, the seller can enforce the contract against the signing spouse. Neither spouse however, will be able to enforce the contract against the seller unless the seller ignores the lack of acceptance by the joint offerees and goes forward with the contract.
When the husband and wife are the sellers, you have bigger issues because spouses often hold title as tenants by the entirety. A buyer who does not obtain the signatures of both husband and wife may be unable to enforce the contract against the non-signing spouse (unless the spouse who didn’t sign authorized the other spouse to sign for them or ratified the contract by his or her actions after formation). The buyer can, however, always sue the accepting spouse for breach of contract if they cannot deliver title as promised in the contract.
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