The approach adopted here appears to be reasonable at first glance. However, quite apart from the specific difficulties it causes in relation to contracts made via standard forms, there are, on closer examination, some difficulties with the basic approach. It appears to envisage that all contractual negotiations are ‘cut and dried’, so that each party in turn stakes out their position and (normally) wholly rejects the position of the other (if they do not unconditionally accept it). The reality of most negotiations is, of course, very different – an offeree may wish to accept the basic proposal of another whilst introducing modifications, say, as to time of delivery, or payment by instalments. The rigidity of the basic model adopted by English law does not readily allow for this, in that any significant modification contained in a proposed acceptance will be seen as a counter-offer (to be valid, an acceptance must be unconditional) and as a rejection of the original offer. The law does not seem to provide for ‘in principle’ acceptances or commitments. One slight qualification to the above is that a mere enquiry will not be viewed as a counter-offer – an offeree can request information about the offer without rejecting it (although without some subsequent unconditional acceptance, there will equally be no contract and the offer may eventually lapse or be revoked). The point is demonstrated well in the case of Stevenson, Jacques and Co v McLean. The defendant, being possessed of warrants for iron, wrote from London to the plaintiff at Middlesborough, asking whether they could get him an offer for the warrants. Further correspondence ensued and, ultimately, the defendant wrote to the plaintiff fixing 40 s per ton net cash as the lowest price at which he could sell, stating that he would hold the offer open till the following Monday. The plaintiff, on Monday morning at 9.42 am, telegraphed to the defendant: ‘Please wire whether you would accept 40 for delivery over two months or, if not, longest limit you could give.’ The defendant sent no answer to this telegram and, after its receipt on the same day, he sold the warrants and, at 1.25 pm, telegraphed to plaintiff that he had done so. Before the arrival of his telegram to that effect, the plaintiff, having at 1 pm found a purchaser for the iron, sent a telegram at 1.34 pm to the defendant, stating that they had secured his price. The defendant refused to deliver the iron and the plaintiff brought an action against him for non-delivery. Lush J, at first instance, found that a binding contract had come into being at 1.34 pm: Stevenson, Jacques and Co v McLean (1880) 5 QB 346, p 349

DOI link for The approach adopted here appears to be reasonable at first glance. However, quite apart from the specific difficulties it causes in relation to contracts made via standard forms, there are, on closer examination, some difficulties with the basic approach. It appears to envisage that all contractual negotiations are ‘cut and dried’, so that each party in turn stakes out their position and (normally) wholly rejects the position of the other (if they do not unconditionally accept it). The reality of most negotiations is, of course, very different – an offeree may wish to accept the basic proposal of another whilst introducing modifications, say, as to time of delivery, or payment by instalments. The rigidity of the basic model adopted by English law does not readily allow for this, in that any significant modification contained in a proposed acceptance will be seen as a counter-offer (to be valid, an acceptance must be unconditional) and as a rejection of the original offer. The law does not seem to provide for ‘in principle’ acceptances or commitments. One slight qualification to the above is that a mere enquiry will not be viewed as a counter-offer – an offeree can request information about the offer without rejecting it (although without some subsequent unconditional acceptance, there will equally be no contract and the offer may eventually lapse or be revoked). The point is demonstrated well in the case of Stevenson, Jacques and Co v McLean. The defendant, being possessed of warrants for iron, wrote from London to the plaintiff at Middlesborough, asking whether they could get him an offer for the warrants. Further correspondence ensued and, ultimately, the defendant wrote to the plaintiff fixing 40 s per ton net cash as the lowest price at which he could sell, stating that he would hold the offer open till the following Monday. The plaintiff, on Monday morning at 9.42 am, telegraphed to the defendant: ‘Please wire whether you would accept 40 for delivery over two months or, if not, longest limit you could give.’ The defendant sent no answer to this telegram and, after its receipt on the same day, he sold the warrants and, at 1.25 pm, telegraphed to plaintiff that he had done so. Before the arrival of his telegram to that effect, the plaintiff, having at 1 pm found a purchaser for the iron, sent a telegram at 1.34 pm to the defendant, stating that they had secured his price. The defendant refused to deliver the iron and the plaintiff brought an action against him for non-delivery. Lush J, at first instance, found that a binding contract had come into being at 1.34 pm: Stevenson, Jacques and Co v McLean (1880) 5 QB 346, p 349

The approach adopted here appears to be reasonable at first glance. However, quite apart from the specific difficulties it causes in relation to contracts made via standard forms, there are, on closer examination, some difficulties with the basic approach. It appears to envisage that all contractual negotiations are ‘cut and dried’, so that each party in turn stakes out their position and (normally) wholly rejects the position of the other (if they do not unconditionally accept it). The reality of most negotiations is, of course, very different – an offeree may wish to accept the basic proposal of another whilst introducing modifications, say, as to time of delivery, or payment by instalments. The rigidity of the basic model adopted by English law does not readily allow for this, in that any significant modification contained in a proposed acceptance will be seen as a counter-offer (to be valid, an acceptance must be unconditional) and as a rejection of the original offer. The law does not seem to provide for ‘in principle’ acceptances or commitments. One slight qualification to the above is that a mere enquiry will not be viewed as a counter-offer – an offeree can request information about the offer without rejecting it (although without some subsequent unconditional acceptance, there will equally be no contract and the offer may eventually lapse or be revoked). The point is demonstrated well in the case of Stevenson, Jacques and Co v McLean. The defendant, being possessed of warrants for iron, wrote from London to the plaintiff at Middlesborough, asking whether they could get him an offer for the warrants. Further correspondence ensued and, ultimately, the defendant wrote to the plaintiff fixing 40 s per ton net cash as the lowest price at which he could sell, stating that he would hold the offer open till the following Monday. The plaintiff, on Monday morning at 9.42 am, telegraphed to the defendant: ‘Please wire whether you would accept 40 for delivery over two months or, if not, longest limit you could give.’ The defendant sent no answer to this telegram and, after its receipt on the same day, he sold the warrants and, at 1.25 pm, telegraphed to plaintiff that he had done so. Before the arrival of his telegram to that effect, the plaintiff, having at 1 pm found a purchaser for the iron, sent a telegram at 1.34 pm to the defendant, stating that they had secured his price. The defendant refused to deliver the iron and the plaintiff brought an action against him for non-delivery. Lush J, at first instance, found that a binding contract had come into being at 1.34 pm: Stevenson, Jacques and Co v McLean (1880) 5 QB 346, p 349