Step (2): Was the offer terminated or was it accepted?
- An offer can accepted by communication or by performance.
- Acceptance of the K must be communicated in the way that the K stipulates.
- Silence is not acceptance.
- Performing a bilateral K is acceptance (with an implied promise to finish the job).
- Performing a unilateral K is acceptance only upon completion of the job.
- Improperly performing a K under the common law is at once acceptance and breach of the K.
- Improperly performing a K under UCC Art. 2 is also at once an acceptance and breach. Goods sent as an accommodation however is considered not as acceptance but as a counter-offer.
In a K that is inter absentes (where both parties are absent), the mailbox rule protects the offeree such that acceptance is effective as soon as it is put in the mail so that the offeror cannot revoke the offer.
Note: when a rejection is sent 1st and an acceptance sent 2nd, whatever arrives 1st is binding. Further, when an acceptance is sent 1st and rejection sent 2nd a K is formed unless the rejection is received 1st and is relied on.