THE EFFECT OF AN OFFEROR'S DEATH UPON HIS OUTSTANDING OFFER

Authors

James Lewis Parks, University of Missouri

Abstract

If A makes an offer to contract with B and dies before B accepts, it has generally been said that the offer is at an end, and that no contract can result, even though later B gives an acceptance without knowing of A's intervening death. To support this rule, it has been stated that a contract can not exist unless the minds of the parties have met, and as the offeror's mind has passed on with his decease, there can be no subsequent mutual assent. It has been convincingly shown that the reasoning of such a decision is unfortunate and a good example of treating a transaction to a subjective analysis for the purpose of determining the existence or non-existence of a contract. Real mutual assent is not essential to the making of a contract. Parties actually may be in disagreement, yet if an offeree reasonably and honestly thinks that he has met the terms of an apparent offer, and by so doing has acquired a right against his offeror, he is at liberty to hold the latter, and to insist upon his own construction of the transaction. Under such conditions, an offeror will be bound just as securely as if he had really intended as he appeared to intend. A promisor's apparent intention (as distinguished from his actual intention) is what controls in contracts, and measures the extent of his duty.

Recommended Citation

James L. Parks, THE EFFECT OF AN OFFEROR'S DEATH UPON HIS OUTSTANDING OFFER, 23 Mich. L. Rev. 475 (1925).
Available at: https://repository.law.umich.edu/mlr/vol23/iss5/3