ESSAY EXAM QUESTIONS AND ANSWERS

ANSWER TO QUESTION 1

Was there an acceptance while the offer was still in force? I am putting aside until later whether Dole’s offer was an irrevocable one. Assuming that the offer was not irrevocable, the question is whether Pinsky accepted while the offer was still in force.

As a preliminary matter, it is not clear that Dole’s offer of October 9th is sufficiently definite to give rise to an enforceable contract upon Pinsky’s tender of a check. The offer contemplates that Dole will give Pinsky $6.75 million worth of credit, but does not specify when this large sum must be paid, nor how it is to be secured. Nor does the offer specify a conveyance date. Thus a court might hold that even if we show that Pinsky did accept before Dole revoked or the offer lapsed, there is no enforceable contract for lack of definiteness. But I think we have a fair chance of showing that as of October 9th, the parties fully intended to reach sufficiently definite terms upon Pinsky’s tender of a check. The court might therefore be induced to supply the missing terms with respect to time for full payment, conveyance date, security, etc.

Turning now to whether Pinsky did anything to accept while there was still a valid power of acceptance, the general rule is that the offeror has the right to set the time as of which his offer expires. Thus, Dole’s October 9th offer created a power of acceptance which lasted no later than December 4th. It is possible that we will be able to show that Pinsky’s call to Dole’s wife, in which he said that he had the check ready for mailing, constituted an acceptance. However, in all probability Dole will successfully contend that only receipt by him of the check, not a statement of Pinsky’s readiness to send it, constituted an acceptance. Dole could point to the general rule that gives the offeror the right to prescribe the exact means by which his offer may be accepted.

It is also possible that Pinsky’s act of showing up in Webster with the check constituted a sort of “constructive” acceptance, in that he did everything in his power to give Dole a check at the place where Dole was supposed to be. Again, however, I would imagine that a court would hold that no acceptance could take place until Dole was actually given the check. We could argue that Dole’s act of disappearing constituted an intentional interference with Pinsky’s right of acceptance, and that therefore Dole has no right to insist upon the precise conditions of his offer (i.e., that the check actually be given to him in person.) However, since I am now assuming that Dole’s offer was revocable at any time, presumably Dole had the right to thwart Pinsky by moving, just as he had the right to revoke the offer outright. This would be an indirect communication of revocation.

We might try the argument that Dole in fact made two offers to Pinsky: one was the written offer, which terminated on December 4th, and the other was an oral offer which by its terms was to last until December 11th (Dole’s tax deadline). Therefore, we would contend, the oral offer remained in force until expressly revoked, and Pinsky’s December 6th tender of a check was a valid acceptance of this offer. (Dole’s refusal to accept this check on the 6th probably would not be a revocation of the offer, since I think a court would hold that the tender of the check was sufficient to accept.)

I think, however, that this “two offers” theory is unlikely to prevail. Even if we convince the court that there were two offers, Dole will have a good chance of showing that the oral offer was revoked. An offeror can revoke his offer by indirect as well as direct means. Restatement 2d, §43, states that “An offeree’s power of acceptance is terminated when the offeror takes definite action inconsistent with an intention to enter into the proposed contract and the offeree acquires reliable information to that effect.” Dole could argue that when he went off into the wilderness without telling anyone of his whereabouts, and Pinsky learned of his having done so, it should have been clear to Pinsky that Dole meant not to accept the offer.

In summary, unless we can show that Dole’s offer was irrevocable, I think we will have a very hard time showing that Pinsky accepted it while he still had a valid power of acceptance. I turn now to the irrevocability question.