Offer and Acceptance in Modern Contract Law: A Needless Concept

Authors

Shawn J. Bayern, Florida State University College of Law

Document Type

Article

Publication Date

2-2015

Publication Title

California Law Review

Publication Title (Abbreviation)

Cal. L. Rev.

Volume

103

First Page

67

Last Page

102

Abstract

The fundamental law of contract formation has retained the formalistic character of classical contract law. The offer-and-acceptance paradigm fits poorly with modern contracting practice, and it obscures and complicates contract doctrine. More importantly, extending it threatens to produce undesirable results. Instead of the offer-and-acceptance paradigm, this Essay proposes that contract formation be analyzed using the same general interpretive inquiry that governs other questions concerning the intent of contracting parties.

Analyzing the processes of contract formation in this manner points the way toward a further-reaching reconsideration of the purposes of contract-formation law in the first place. In particular, this Essay proposes a reevaluation of the rule that parties cannot unilaterally rescind a contract immediately after the law deems it to be formed. Such a rule, too, is largely formalistic. In its place, the Essay offers a rule of contract formation that is more closely tied to the moral and instrumental purposes of contract remedies.

Rights

© 2015 Shawn J. Bayern

Comments

Originally published in the California Law Review vol. 103 (2015).

Faculty Biography

http://archive.law.fsu.edu/faculty/sbayern.html

Recommended Citation

Shawn J. Bayern, Offer and Acceptance in Modern Contract Law: A Needless Concept, 103 Cal. L. Rev. 67 (2015),
Available at: https://ir.law.fsu.edu/articles/40