Offer and acceptance in formation of contract

84-2-206. Offer and acceptance in formation of contract. (1) Unless otherwise unambiguously indicated by the language or circumstances (a) an offer to make a contract shall be construed as inviting acceptance in any manner and by any medium reasonable in the circumstances; (b) an order or other offer to buy goods for prompt or current shipment shall be construed as inviting acceptance either by a prompt promise to ship or by the prompt or current shipment of conforming or nonconforming goods, but such a shipment of nonconforming goods does not constitute an acceptance if the seller seasonably notifies the buyer that the shipment is offered only as an accommodation to the buyer. (2) Where the beginning of a requested performance is a reasonable mode of acceptance an offeror who is not notified of acceptance within a reasonable time may treat the offer as having lapsed before acceptance. History: L. 1965, ch. 564, § 30; January 1, 1966. KANSAS COMMENT, 1996 1. Although this section is entitled "offer and acceptance in formation of contract," it has more to say about acceptance than offer. The Code does not define "offer" or attempt to dictate what constitutes an offer. Benson Mineral Group, Inc. v. Enron Gas Processing Co., 1991 U.S. Dist. LEXIS 1387 (D. Kan. 1991). Thus, common law rules on the question of what constitutes an offer, and on other issues concerning offer and acceptance, continue to apply under Article 2 except in the limited number of instances in which the Code expressly changes those rules. See 84-1-103. 2. Paragraph (1)(a) adopts the rule that a party may accept an offer in any manner and by any reasonable medium. See Steel Benders, Inc. v. H.R. Braner Eng'g, Inc., 1988 U.S. Dist. Lexis 711 (D. Kan. 1988) (oral acceptance of written offer valid under Article 2) (dicta). The offeror continues to be the master of the offer and may require a specific manner or medium of acceptance, but any such requirement must be unambiguously indicated by the language of the offer or other circumstances. 3. Paragraph (1)(b) provides that, in the absence of unambiguous indications to the contrary, an offer to buy goods for prompt or current shipment can be accepted either by a promise to ship or by the shipment of goods. The Code thus construes ambiguous offers as permitting acceptance either by promise or performance and blurs the traditional distinction between unilateral and bilateral contracts. This paragraph does not create a presumption that a purchase order is an offer. Contra Harper Trucks, Inc. v. Allied Welding Supply Inc., 2 U.C.C. Rep. Serv. 2d 835 (D. Kan. 1986) (dicta). As stated above, the Code is silent on what is an offer. Under this paragraph, even a shipment of non-conforming goods constitutes an acceptance, although it simultaneously constitutes a breach of contract. The seller may prevent a non-conforming shipment from operating as an acceptance by seasonably notifying the buyer that the shipment is offered only as an accommodation. 4. Subsection (2) addresses the requirement of notice when an offer permits acceptance by the beginning of performance. Under paragraph (1)(a), the beginning of the requested performance may well be a reasonable manner of accepting an offer. This subsection requires the offeree that accepts by beginning performance to give notice of acceptance within a reasonable time. If the offeree fails to do so, the offeror is entitled to treat the offer as having lapsed before it was accepted. Law Review and Bar Journal References: "Electronic Commerce in Kansas: Contract Formation and Formalities Under Article 2," Christopher R. Drahozal, 68 J.K.B.A. No. 5, 22 (1999).