This chapter explains when a proposal becomes an offer by focusing on commitment, certainty, and the difference between real assent and mere negotiation. The Troll Campfire scenario makes the doctrine vivid by contrasting bluster and banter with a legally operative invitation to contract.
Doctrinal map
An offer (R2d § 24) is a manifestation that gives the offeree the power to close the deal by acceptance. The chapter distinguishes offers from invitations to deal (Lefkowitz — clear, definite, explicit advertisements are offers; Leonard v. PepsiCo — humorous mass-media commercials are not). The student leaves able to identify what an offer requires, what an advertisement usually is, and when digital-format presentation (Specht, ProCD) does or does not constitute a binding manifestation.
Key Sources
Key Rules
- R2d § 24: Offer = manifestation of willingness to enter bargain
- R2d § 26: Preliminary negotiations are not offers
- R2d § 33: Terms must be reasonably certain
- Advertisements generally NOT offers — exception: Lefkowitz
Cases
- Lefkowitz v. Great Minneapolis Surplus Store 251 Minn. 188, 86 N.W.2d 689 (1957) An advertisement is an offer when it is clear, definite, and explicit, and leaves nothing open for negotiation. A seller cannot impose new conditions of acceptance after the offer has been accepted by performance.
- Leonard v. Pepsico, Inc. 88 F. Supp. 2d 116 (S.D.N.Y. 1999), aff'd, 210 F.3d 88 (2d Cir. 2000) An advertisement does not constitute an offer where no objective, reasonable person could understand it to be a serious expression of willingness to enter a bargain. Obvious humor, exaggeration, and commercial context can defeat any reasonable inference of an offer.
- Drennan v. Star Paving Co. 51 Cal. 2d 409, 333 P.2d 757 (1958) A subcontractor's bid that a general contractor reasonably relies upon in submitting its prime bid becomes binding under R2d § 87(2) / R2d § 90. The subcontractor cannot revoke after the general contractor has used the bid, even though the prime contract has not yet been awarded.
- Specht v. Netscape Communications Corp. 306 F.3d 17 (2d Cir. 2002) A consumer's clicking of a download button is not an assent to license terms that appear only on a separate, scroll-down page below the button. Where the existence and terms of an offer are not reasonably conspicuous, a user's conduct cannot constitute acceptance of those terms.
- ProCD, Inc. v. Zeidenberg 86 F.3d 1447 (7th Cir. 1996) Shrinkwrap license terms enclosed inside a software box are enforceable where the buyer has notice that the product is sold subject to license terms and an opportunity to return the product for a refund after reviewing them. Acceptance is by retention of the product after the terms are presented, not by purchase at the register.
An offer is a proposal to enter a voluntary bargain or exchange.