Shawn J. Bayern

Offer and Acceptance in Modern Contract Law: A Needless Concept

The fundamental law of contract formation has retained the formalistic character of classical contract law. The offer-andacceptance 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.