## Introduction

In contract law, a “conditional acceptance” is not a true acceptance. If a party replies to an offer by adding, changing, or conditioning the terms, that reply functions as a counteroffer. The power to form a contract now sits with the original offeror, who must accept the new terms.

This topic shows up frequently in real estate and services contracts governed by common law (mirror-image rule), and in the sale of goods under the Uniform Commercial Code (UCC), especially Section 2-207 covering “battle of the forms.”

## What You'll Learn

- Plain-language definition of conditional acceptance and how it differs from true acceptance
- How the mirror-image rule treats conditional acceptance under common law
- How UCC 2-207 handles acceptances with additional or different terms for the sale of goods
- The difference between a conditional acceptance and a mere request for information
- Key cases: Hyde v. Wrench, National Educators Association v. Ford Motor Co., Butler Machine Tool v. Ex-Cell-O, and Ardente v. Horan
- Practical drafting tips, sample phrasing, and timing considerations (including mailbox rule basics)

## Core Concepts

### What Is a Conditional Acceptance

- Definition: A reply that purports to accept an offer but adds, changes, or conditions terms. Example phrases that typically create a conditional acceptance:
  - “I accept, provided that…”
  - “I accept on the condition that…”
  - “I accept if you also agree to…”
- Legal effect:
  - Under common law (services, real estate), any deviation from the offer’s terms is a counteroffer.
  - A counteroffer rejects the original offer. The original offer cannot be accepted later unless it is renewed.
  - The counteroffer must be accepted by the original offeror to create a contract.

Tip: When you truly mean to accept, avoid words like “if,” “provided that,” or “subject to” in the same sentence as your acceptance.

### Mirror-Image Rule (Common Law) vs. UCC 2-207 (Goods)

- Common law (mirror-image rule):
  - Acceptance must match the offer exactly.
  - Any added or different term turns the response into a counteroffer.
  - This applies most often to real estate and service contracts.

- UCC 2-207 (sale of goods):
  - A “definite and seasonable expression of acceptance” can create a contract even if it includes additional or different terms—unless the acceptance is expressly made conditional on the other party’s assent to those terms.
  - Additional terms are treated as proposals. Between merchants, they may become part of the contract unless:
    - The offer expressly limits acceptance to its terms,
    - The new terms materially alter the deal, or
    - The offeror objects in a reasonable time.
  - If an acceptance is “expressly conditional,” it is not an acceptance at all; it’s a counteroffer. If the parties then perform, a contract may arise by conduct, and terms are supplied by what the forms agree on plus UCC gap-fillers (often called the “knockout” approach in many jurisdictions).

Practical note: Under the UCC, carefully drafted “expressly conditional” language is often used to control which terms govern. But it also risks leaving you without a contract unless the other party clearly agrees or the parties proceed by performance.

### Requests for Information vs. Counteroffers

- Request for information (not a counteroffer): “Would you consider including delivery by Friday?” or “Can you confirm the warranty length?”
  - This does not reject the original offer. The offeree can still accept the original terms.
- Conditional acceptance (counteroffer): “I accept if you include delivery by Friday.”
  - This rejects the original offer and proposes a new deal that requires acceptance by the original offeror.

Tip: If you want to accept now but discuss changes, separate those ideas: “I accept your offer as stated. I would also like to discuss delivery timing.”

## Key Examples or Case Studies

### Hyde v. Wrench (1840)

- Context: Seller offered land at a set price. Buyer replied with a lower price.
- Holding: The buyer’s “acceptance” at a lower price was a counteroffer, which rejected the original offer. The buyer could not later accept the original price.
- Takeaway: Under the mirror-image rule, changing the price rejects the offer and resets the negotiation.

### National Educators Association v. Ford Motor Co

- Context: Buyer attempted to accept a promotional car purchase offer but added conditions about delivery and financing.
- Holding: The added conditions changed the original terms. Ford treated the response as a counteroffer, and the court agreed.
- Takeaway: Adding delivery or financing conditions to an acceptance can transform it into a counteroffer.

### Butler Machine Tool Co. Ltd. v. Ex-Cell-O Corporation (1979)

- Context: Competing forms with different terms—classic “battle of the forms.”
- Holding: The court treated Butler’s conditional acceptance as a counteroffer. The contract was formed on the last set of terms sent and accepted without further conditions.
- Takeaway: In a forms exchange, the party who sends the final set of terms that the other side accepts or performs under often prevails. Under the UCC, courts apply Section 2-207, which can produce different outcomes than this English “last shot” approach.

### Ardente v. Horan (R.I. 1976)

- Context: Buyer returned a signed real estate purchase agreement but added conditions requiring certain items to remain with the property.
- Holding: The added conditions turned the response into a counteroffer. Because the sellers did not accept those conditions, no contract was formed.
- Takeaway: In real estate deals, any extra condition (even about fixtures or furnishings) can void an acceptance unless the seller agrees.

## Practical Applications

- When you truly intend to accept:
  - Use clear, unconditional language: “I accept your offer as stated.”
  - Avoid “if,” “provided that,” “so long as,” or “subject to” in the acceptance itself.
  - If you want to request changes, do it in a separate sentence: “I accept as stated. Separately, would you consider adding X?” Make it clear your acceptance does not depend on that change.

- When you intend to counter:
  - Be explicit: “This is a counteroffer on the following terms.”
  - State a firm response date and delivery method.
  - Understand that your counteroffer ends the original offer unless it is renewed.

- Real estate and services (common law):
  - Expect strict application of the mirror-image rule.
  - If you change any term (price, timing, contingencies, fixtures), that is a counteroffer.
  - Keep Statute of Frauds requirements in mind: agreements typically must be in writing and signed by the party to be charged.

- Sale of goods (UCC 2-207):
  - If you want your form to act as an acceptance with proposed terms, do not make it “expressly conditional.” Your added terms may become part of the contract between merchants unless an exception applies.
  - If you need the other side to accept your terms as a condition, say so clearly (e.g., “This acceptance is expressly conditional on your assent to the additional/different terms”). Know that this is a counteroffer and may delay contract formation.
  - Watch for performance. If both sides ship and accept goods, a contract may form by conduct. Then, conflicting terms may be knocked out and replaced by UCC defaults.

- Keep the offer alive if you’re only asking questions:
  - Use phrases like “Would you consider…” or “Can you confirm…” instead of “I accept if…”
  - You can also accept and, in a separate message, propose an amendment without making acceptance conditional.

- Timing and the mailbox rule:
  - A counteroffer is effective when received, not when sent.
  - The mailbox rule (acceptance effective on dispatch) applies to true acceptances, not counteroffers.
  - If time is short, confirm receipt of any conditional language to avoid missed deadlines.

- Documentation tips:
  - Number your drafts and label them clearly (Offer, Counteroffer, Acceptance).
  - Track which version is current, who signed, and when.
  - For UCC transactions, maintain copies of purchase orders, acknowledgments, confirmations, and objections.

Sample acceptance language (common law):

- “I accept your offer dated [date] to purchase [asset/service] for [$ amount] with delivery on [date].”
- Separate request: “I accept as stated. Would you also be open to [non-mandatory change]?”

Sample “expressly conditional” language (UCC):

- “This acceptance is expressly conditional on your assent to the additional or different terms set forth in our acknowledgment.”

## Summary Checklist

- Identify governing law: common law (mirror-image rule) or UCC 2-207 (goods).
- Decide your goal: accept as-is or counter with changes.
- For true acceptance, avoid conditional words; keep acceptance clear and unconditional.
- To counter, label it as a counteroffer and state revised terms and deadlines.
- Under UCC 2-207, choose whether to make your acceptance “expressly conditional” and plan for the risks.
- Between merchants, object promptly to unwanted additional terms.
- In real estate/services, remember that any change is a counteroffer and may require a new signed writing.
- Track timing: a counteroffer kills the original offer; acceptance by mail is effective on dispatch, but counteroffers are effective on receipt.
- Keep thorough records of offers, counteroffers, acceptances, and objections.

## Quick Reference

| Concept/Scenario                         | Source                                | Key Takeaway                                                      |
| ---------------------------------------- | ------------------------------------- | ----------------------------------------------------------------- |
| Conditional acceptance (common law)      | Restatement (Second) of Contracts §59 | Adds/changes terms → it’s a counteroffer; original offer ends.    |
| UCC acceptance with extra terms          | UCC §2-207(1)-(2)                     | Can form a contract; extra terms are proposals (merchant rules).  |
| Expressly conditional “acceptance” (UCC) | UCC §2-207(1)                         | Not an acceptance; functions as a counteroffer.                   |
| Ardente v. Horan (real estate)           | R.I. case law                         | Added conditions about items → no contract without seller assent. |
| Mailbox rule vs. counteroffers           | Common law                            | Acceptance effective on dispatch; counteroffers on receipt.       |

Conditional Acceptance in Contract Law: Definition, Cases, and Practical Tips