The rule
Acceptance manifests assent in the manner the offer invites. For goods, 2-206 permits reasonable modes unless unambiguously indicated otherwise and specifically addresses prompt shipment. Notice and context determine whether performance, use or a click signifies agreement.
Elements
- An acceptance power conferred by the offer.
- A response in the invited or otherwise permitted manner.
- Any notice and timing required by the governing rule.
Exceptions and limits
- Timely accommodation notice prevents a nonconforming shipment from accepting under 2-206(1)(b).
- Beginning requested performance can require reasonable notification under 2-206(2).
- Added terms in goods transactions may require 2-207 instead of an automatic counteroffer conclusion.
When the issue arises
Start with the invitation. A download click, a changed-terms reply, a shipment and performance of a reward condition require different evidence, because the same physical act may communicate agreement, reserve assent or supply the very performance the offer requests. The surrounding notice matters. For a goods shipment, compare the goods and any timely accommodation notice with the offer before applying the timing rule. Keep the formation question separate from what damages a resulting breach might support.
The invited act determines what the act means
Carlill offered a reward on specified product-use and illness conditions. The company's invitation dispensed with prior notice of acceptance in that transaction; the opinion does not eliminate notice from every performance offer.
Normile's response changed proposed sale terms and did not accept the original offer. For goods, also consider 2-207 before declaring that any added term must defeat acceptance.
Prompt shipment and the accommodation exception
An email promising dispatch and a physical delivery are two possible responses to the same prompt-shipment order. Place each on the timeline instead of treating shipment as the only possible route under 2-206(1)(b).
For a substitution, read the messages surrounding dispatch. A record identifying a different item does not by itself show notice that the seller was offering a courtesy alternative. The words and timing of the communication matter separately from the contents of the box.
Section 2-206(2) separately addresses beginning requested performance as a reasonable acceptance mode. Without notification within a reasonable time, the offeror may treat the offer as having lapsed before acceptance; distinguish that situation from Carlill's particular invitation.
Notice distinguishes two software transactions
ProCD gave outside notice of an enclosed license, an opportunity to review and reject for a refund, and an indication of acceptance before use. The Seventh Circuit enforced that arrangement while preserving ordinary defenses.
Specht's SmartDownload users lacked reasonably conspicuous notice connecting the download to license terms. The Second Circuit did not treat downloading itself as unambiguous assent, and it distinguished a failure to read known terms from missing notice of their existence.
A simple fact pattern
Facts. A buyer orders blue tiles for prompt shipment. The seller promptly ships red tiles with timely notice that they are offered only as an accommodation, and no earlier acceptance is stated. Apply 2-206(1)(b).
Analysis. The courtesy shipment of red tiles does not itself establish acceptance of the order for blue tiles. A claim based on a completed sale needs some other agreement or acceptance. Deleting only the courtesy notification changes the significance of the same delivery: absent contrary facts, the wrong color can both form a contract and breach its promised performance.
A harder fact pattern
Facts. A free-software page displays a download button without visible notice of an agreement. The terms can be found through a link below the visible screen, and no later agreement is required. The seller says clicking proves assent.
Analysis. Under Specht's reasoning, examine reasonable notice and whether the click unambiguously communicated agreement. A hidden contractual notice differs from a user ignoring known terms; the seller cannot establish acceptance merely by identifying a click.
Leading cases
Carlill v. Carbolic Smoke Ball Co.
An advertisement that promises a reward to anyone who performs a stated act can be an offer to the world, and it is accepted by performing the act, with no notice required.
1996ProCD, Inc. v. Zeidenberg
ProCD could invite acceptance after purchase through use of the software, with notice of the enclosed license and a refund available for rejection. That did not exempt the license from ordinary contract defenses.
2002Specht v. Netscape Communications Corp.
Downloading SmartDownload did not signal assent to license terms users had no reasonable notice of. A separate browser agreement and a speculative benefit to a website owner did not supply the missing arbitration obligation.
1985Normile v. Miller
The buyers could not accept Miller’s counteroffer after receiving reliable notice that she had sold the property. Their original acceptance deadline supplied no promise by Miller to keep her counteroffer open, and the court did not decide whether a seal alone would supply option consideration.
Compared with nearby doctrines
| Doctrine | How it differs |
|---|---|
| Offer | A response can exercise only the acceptance power actually conferred. |
| Battle of the forms | For goods, additional terms require a 2-207 analysis rather than an automatic counteroffer conclusion. |
| Mailbox rule | Dispatch and receipt rules address timing after the mode and actual response are identified. |
Common exam mistakes
- Applying a dispatch rule before identifying the invited acceptance mode.
- Treating all silence, clicks or continued use as agreement without their context.
- Ignoring the timely accommodation qualification for a nonconforming shipment.
- Assuming a performance-based acceptance never requires notification.
Practice questions
A buyer offers to purchase twelve custom storage bins and invites the seller to accept by beginning fabrication. Assume beginning work is a reasonable mode of acceptance under model UCC 2-206(2).
The seller starts work but does not notify the buyer within a reasonable time. The buyer remains unaware of the work. What does the specified provision permit the buyer to do?
Answer and explanations
Correct answer: A.
Authority: UCC 2-206(2): beginning performance and reasonable notification
- A. Correct. Subsection (2) permits the offeror to treat the offer as lapsed before acceptance when notification does not arrive within a reasonable time. The problem supplies that failure.
- B. Wrong. The provision gives the offeror a specified response to missing notice. It does not itself establish an enforceable damages claim for delay, breach or loss.
- C. Wrong. The stem expressly makes beginning fabrication a reasonable acceptance mode. The remaining question concerns notification, rather than a supposed universal prohibition on that mode.
- D. Wrong. Beginning performance does not eliminate subsection (2)'s notification issue. The stated unreasonable silence is the fact that makes its lapse provision relevant here.
A goods buyer's offer unambiguously states that only a signed acknowledgment emailed to the specified address by Friday will count as acceptance. It expressly excludes acceptance by starting work or shipping.
The seller ships conforming goods but never sends the acknowledgment. Assume no waiver, later agreement or other acceptance. Which statement best applies model UCC 2-206(1)?
Answer and explanations
Correct answer: C.
Authority: UCC 2-206(1)(a)-(b): express limits and default acceptance modes
- A. Wrong. Subsection (1)'s default rules yield to unambiguous language or circumstances indicating otherwise. The offer expressly excludes shipment as acceptance on these facts.
- B. Wrong. The question concerns the permitted mode of acceptance. The statute does not impose the proposed universal two-signature condition on formation of goods contracts.
- C. Correct. The opening qualification in subsection (1) matters. An ordinarily available acceptance method does not override this offer's unambiguous limitation under the stated assumptions.
- D. Wrong. A private intention does not supply the required emailed acknowledgment. No stated act meets that specified method, and the stem excludes another acceptance route.
More contracts practice questions and essays
Quick answers
Does shipping the wrong goods mean no acceptance?
Not necessarily. Section 2-206 can treat prompt nonconforming shipment as acceptance and breach, unless timely accommodation notice changes that result.
Did Carlill hold that notice is never needed?
No. Its reward invitation dispensed with prior acceptance notice on those facts. Other invitations and statutory rules need separate examination.
Does Specht require reading every term?
The decision requires reasonable notice and an unambiguous manifestation of assent in its transaction. It distinguishes missing notice from failing to read after adequate notice.