D. American View as to Forms of Offer and Acceptance

a. Of Offer.-The offer may be made either expressly or impliedly. Thus, offers by expressed words, an option to a town to buy a water-works company; an offer made by a city ordinance to perform the conditions of the lease to be assigned, etc. (Braintree, etc., Co. vs. Braintree, 146 Mass. 482; Curtis vs. Forthmouth, 39 Atl. 439.) The offer may be made impliedly or by acts as well as by words, such as if one person performs work and labor for another of a sort for which compensation is customary, intending to charge therefor, and the person for whom the work is done has requested impliedly before the doing of such work, that it should be done, or after it was done, has voluntarily accepted the benefit arising therefrom, the person for whom the work is done is liable to the person who does it. (Lafayette Ry. Co. vs. Turker, 124 Ala. 514; Page on Contracts, Vol. I, Sec. 29.)

Communications by Letter.-Negotiations which finally culminate in a contract may also be carried on entirely by letter. (Kimball vs. Moreland, 55 Ga. 164.) There is no dispute as to whether or not contracts can be so formed. The only question to be determined in such instance is whether the correspondence shows an agreement upon which the minds of the parties met or whether the negotiations are inchoate and imperfect. If the latter is true there is of course no contract. (Bissenger vs. Prince, 117 Ala. 580; Elliott on Contracts, Vol. I, Sec. 44.) One who makes an offer by mail constitutes thereby the post-office his agent for its transmission. (Bishop on Contracts, Sec. 328.)

Communications by Telegraph.-There is but little, if any, difference between the rules governing contracts formed by correspondence through the post-office and those governing contracts made through communications by means of the telcgraph. (Minnesota and Oil Co. vs. Collier & Co., 431 Fed. Cas. No. 9635.) It is universally considered that people may contract by means of telegraphic messages. (Utley vs. Donaldson, 94 U. S. 29.) Contracts thus formed are governed the same as all other contracts, by the general rules relative to offer and acceptance. A telegram, in order to constitute an offer, must be made with the intention to form a legal obligation or relation. It must not be intended only as a preliminary negotiation. (Strobriedge Lithographing Co. vs. Randall, 73 Fed. 619.) The telegrams sent and received must be final, free from fatal ambiguity or indefiniteness, and sufficiently designate the parties. And the answer must usually be given promptly in order to form a binding contract. In short, they must show all the essential elements of the contracts. (Martin vs. Northwestern Fuel Co., 22 Fed. 596; Elliott on Contracts, Vol. I, Sec. 45.) In the United States a party making an offer by telegraph is responsible for the correct transmission of his message and is bound by it in the terms in which it is delivered to the party addressed. (9 Cyc. 294.)

Communications by Telephone.-Contracts may be consummated by means of telephonic conversations. When a person places himself in connection with another by means of the telephone system he thereby invites communications relative to his

business through that channel. In a recent case, referring to an argument against the validity of such a contract, it was held: "If by this is meant that a contract cannot be made by telephonic conversation it is too late to so argue. A large part of our business transactions are, in this century, carried on by telephone. Our courts have long ago held that contracts made by telephone are as effective and binding in law as if made verbally between the parties standing face to face and carrying the conversation which culminates in the contract." (Saint Louis Maple & Co. vs. Knust, 128 S. W. 532; Elliott on Contracts, Vol. I, Sec. 46.)

b. Of Acceptance.-(1) The party making the offer may prescribe a mode in which acceptance must be made, if at all. Unless the party making the offer subsequently modifies his requirements, expressly or impliedly, he cannot be bound by an acceptance in any other form. (Wishell vs. Bresnahan, 24 Atl. 885.) In case the party to whom the offer is made has done all that is prescribed in the offer as requisite for an acceptance, the offer is accepted whether the party offering has actual knowledge of the acceptance or not. (Second National Bank vs. Dufendorf, 90 Ill. 393; Page on Contracts, Vol. I, Sec. 48.)

(2) Where the offer does not prescribe any specific manner of acceptance, any form of communicating the intention to accept the offer, made to the offerer or his duly authorized representative is sufficient. (Summers vs. Hibbard, 153 Ill. 102.) Thus, when one communicates his acceptance by express words, either orally or in writing. (Fairmount Glassworks vs. Wordenware Co., 106 Ky. 659; Page on Contracts, Vol. I, Sec. 49).

(3) The party accepting an offer may as well signify his assent to an offer, by doing acts which clearly show such assent, as by express words. If such acts are done with the knowledge of the party making the offer, they amount to an acceptance thereof. (Witnay vs. Wyman, 101 U. S. 392; Page on Contracts, Vol. I, Sec. 50.)

(4) The acceptance can also be made by mail or telegraph.-But in order to bind the offerer, it is necessary that he must have actual knowledge of such acceptance unless when he has required, either expressly or impliedly, that the acceptance be made in this way in which case the mailing or sending of the letter of acceptance is enough as will be seen later. (Adams vs. Lindsell, 19 Rev. Rep. 415); and finally it can also be made by telephone. (Smith vs. Ingram, 90 Ala. 529; Page on Contracts, Vol. I, Sec. 52.)

E. Requirements to Constitute Perfection under Spanish Law

a. Identity Between Offer and Acceptance.-Offer and acceptance are two correlative ideas; the former qualifies the latter and only when this is wholly in accord with the former where the consent is produced, hence, the perfection of the contract. There should therefore be an identity between offer and acceptance. There are two kinds of identity: Internal and External.

Internal Identity:-This refers to the comformity of the parties with regard to the persons, the things and nature of the contract. To understand each of these

kinds of identities it will suffice to give an example which will serve as an illustration of each kind: (1) If A proposes to B to recognize a debt to C, and B accepts the proposal but in favor of D, in this case there is no perfection of the contract because there is no meeting of the minds with respect to the person which is the subject of the contract; (2) If A proposes to B to buy a horse with certain characteristics for a certain price, and B accepts it with a different price, in this case there is neither perfection of the contract, there being no identity of minds with regard to the price constituting the object of the contract. (Roman vs. Grimault, 6 Phil. 96; Yu Tek & Co. vs. Gonzalez, 29 Phil. 384); (3) If A proposes to B to loan him a horse in lieu of his service, but B accepts the service under the condition to give him the horse as a donation, in this case there is neither perfection of the contract, because there is no identity of minds as to the nature of the contract. (IV Sanchez Román, 236.)

External Identity.-This refers to the agreement of the parties as to the circumstances which may affect or be imposed upon the offer and the acceptance as to the time within which the minds of the parties should meet, and as to the external form, general or special, in which according to law the offer and the acceptance have to be made, if the offer or acceptance as the case may be, so demands.

Identity as to the circumstances of the case takes place when the offer or acceptance is accompanied by certain conditions, upon which depends the validity of the contract, or with a period or other circumstances of mode and place and there had been a conformity between the parties as to them. In this case, it is to be noted, however, that it is not only important that there should be identity, but it is further necessary to determine the nature of the circumstance imposed, for in most of the cases not only upon the identity but upon its compliance depends the perfection of the contract. (IV Sanchez Román, 237.)

Identity as to Time.-Generally, offer and acceptance are made simultaneously, specially if the contract is made between persons present and there is no reservation to accept or decline to offer within a certain period of time. In case there is such a reservation, and if the contract is to be made between persons absent, there intervenes a new factor, i. e., certain time which clapses between the offer and the acceptance. Now then, within which period the acceptance should be made? This depends whether or not a period has been fixed by the offerer in which acceptance should be made. Should there be a period fixed in the offer, then the acceptance must be made within that period, otherwise, the acceptance made after the expiration of that period will not result into the perfection of the contract, and is, therefore, not binding upon the offerer. Hence, the importance of the identity with respect to time within which the acceptance should be made. (IV Sanchez Román, 239.)

Identity as to Form.-Although it is true that the Civil Code and the Code of Commerce require no form for the perfection of the contract as may be seen later on, however the offer may require as a requisite for the validity of the contract, that it be clothed with certain forms provided for by law. Such as when the offer

requires that the contract be embodied in a public instrument, or the same be registered in accordance with the provisions of the Mortgage Law. In either case the form should be regarded as a condition precedent to the perfection of the contract. (IV Sanchez Román, 249.)

Acceptance must be Absolute.-In order to produce legal effect, the acceptance must be in a perfect accord with the terms of the offer without any addition, restriction or modification; in other words, it should conform entirely to the terms of the offer. Otherwise, there would be no valid acceptance, but a new proposition which must also be accepted fully by the original offerer, in order to produce the perfection of the contract. (IV Sanchez Román, 235; 8 Manresa, 635.). This theory is confirmed by a decision of the Supreme Court of Spain, October 2, 1867, in declaring that a proposition accepted conditionally is not binding, unless said condition is accepted in turn by the original offerer. Acceptance made in this form is equivalent to a new proposition which the offeree proposes to the original offerer and such is the spirit of Article 1293 of Mexican Code in providing that: “* * if the acceptance imports a modification of the proposition, the same is considered as a new proposition" and Article 654 of the Portuguese Code in providing that: “* * * when the answer involves a modification of the offer it will be considered as a new proposition." (20 Scaevola 590.) However there are special cases wherein acceptance of one of the propositions contained in the offer may produce the perfection of the contract, but this depends upon the nature of the offer. If it consists of two propositions, one a lease of land and the other a sale of another land, which are divisible and independent to each other, in this case the acceptance of one will produce the perfection as far as the accepted part of the offer is concerned. Not so if the propositions in the offer are indivisible. From this clearly follows that to produce the perfection of the contract there must be an absolute acceptance of the terms of the offer.

F. Requirements to Constitute Operation under American Law.

a. Of Offer.-The offer which by acceptance can become an agreement must have the following qualities:

1. It must purport to create liabilities which are legally enforceable. Thus it is often said that offers purely social or religious in their nature cannot form the basis of a contract even if all the other elements are present. (Sweeney vs. Supply Co., 121 Ala. 454; Page on Contracts, Vol. I, Sec. 24.)

2. It must be so made as to indicate a real intention to assume liability. An offer made in jest and known to be made in jest by the party accepting it, cannot be the basis of any legal liability, such as a marriage ceremony intended by both parties as a jest and the like. (McClurg vs. Terry, 21 N. J. Eq. 248.) However, both parties must understand such a joke. An offer made in jest is enforceable by one who accepts it bona fide as a serious proposition. (Plate vs. Duost, 32 L. R. A. 404; Page on Contracts, Vol. I, Sec. 25.)

3. The offer must be one which is intended of itself to create legal relation on acceptance. It must not be an offer intended merely to open negotiation which will ultimately result in a contract or intended to call for an offer in legal form from the party to whom it is addressed. (Maclay vs. Harvey, 32 Am. Rep. 35.) The commonest example of offers meant to open negotiation and to call forth offers in the technical sense, are the advertisements, circulars, and trade letters sent out by business houses. While it is possible that the offers made by such means may be in such form as to become contract, they are often merely expressions of a willingness to negotiate. (Maclay vs. Harvey, 32 Am. Rep. 36; Page on Contracts, Vol. I, Sec. 26.)

4. The offer must be so complete that upon acceptance, an agreement is formed which contains all the terms necessary to determine whether the contract has been performed or not. (Bissenger vs. Babcock Co., 67 Fed. 892.) Thus, an offer which leaves the amount of compensation to be determined by subsequent negotiation fixing only the extreme limits within which the negotiations are to range; or one which leaves to a future valuation between the parties the price to be paid for realty and the like. (Wardell vs. Williams, 62 Mich. 50; Cunn vs. Newcomb, 82 Ia. 468.) However, the terms need not all be expressly set forth in the offer. If the terms can be determined from the context, the offer is sufficiently complete. So a contract to furnish gas is not indefinite as not fixing the time during which gas is to be furnished, where the law requires a Gas Company to supply gas as long as required by the occupant of any buildings if he pays for it. (Gallagher vs. Gas Light Company, 75 Pac. 329.) So where the context shows that prompt performance is intended, the contract is sufficiently definite though no time is expressly fixed. (Page on Contracts, Vol. I, Sec. 27.)

5. The offer must be certain and definite in its terms so that the court may be able to determine who the parties were, what the subject matter was, and whether the contract had been performed or not. If an agreement is uncertain it is because the offer was uncertain for the acceptance is always required to be identical with the offer; hence the agreement being uncertain, it becomes inoperative. (Hart vs. Georgia, 101 Ga. 188.) Therefore if the offer is in any case so indefinite as to make it impossible for a court to decide just what it means and to fix exactly the legal liability of the parties, its acceptance cannot result in an enforceable agreement. (Baurman vs. Buizen, 16 N. Y. Suppl. 342.) A written agreement may be void for uncertainty because of failure to name the parties, or because it is so misspelled or ungrammatical, etc., that it has no meaning at all. (Cheney Bigelow Wire Works vs. Sorrell, 142 Mass. 442.) An offer intended and was understood by the offeree is sufficient. That is certain which may be rendered certain, according to the maxim “in certum est quod certum reddi potest." So an offer to sell goods need not specify the price, for if no price is stated it will be presumed that the reasonable or market price was intended. (Troy Fertilizer Company vs. Logan, 96 Ala. 619; Elliott on Contracts, Vol. I, Sec. 30; 9 Cyc., pp. 248-251.)