Also known as: offers to sell · offered to sell · offering to sell
Written by attorneys · grounded in primary & secondary sources — see below
A manifestation of willingness to enter into a bargain for the sale of goods or services on specified terms that empowers the recipient to conclude the transaction by acceptance.
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Optima Health placed a full-page newspaper advertisement listing specific medical devices at fixed prices available on a first-come basis while supplies lasted. Olive Okafor drove across the state to reach the store early and selected one of the advertised items. The store refused to sell at the listed price citing an internal brand restriction not mentioned in the ad. Olive sued claiming the advertisement formed an offer she had accepted.
Owen Ortega contacted several large holders of BD shares to gauge interest in a block sale. One holder later claimed the conversations created an offer to sell that bound the parties when Owen tendered payment. The court examined whether the preliminary inquiries manifested a present intent to conclude a bargain without further assent. No contract formed because the communications left open the need for additional manifestations.
Omega Energy circulated flyers offering to buy corn only from local farmers who delivered by a stated date. A hardware store owner purchased corn from farmers and tendered delivery. Omega rejected the tender. The hardware store owner sued asserting the flyer created an offer open to anyone who performed. The court held the flyer addressed only the described class of local farmers so the hardware store owner never acquired power to accept.
Hanson Trust announced a tender offer for SCM shares and later attempted to withdraw after market changes. SCM shareholders who had tendered claimed the announcement created irrevocable offers to sell. The court analyzed whether the initial announcement manifested present contractual intent or remained subject to further manifestations. The withdrawal succeeded because the announcement did not bind Hanson without additional assent from the offeror.
An advertisement becomes an offer only when it contains language of commitment or invites the recipient to take action without further communication. General publicity for goods stating prices and terms remains an invitation for offers unless the advertiser manifests present intent to be bound upon acceptance. Courts examine the advertisement's wording, distribution method, and surrounding circumstances to determine whether a reasonable recipient would understand that no further assent from the advertiser is required.
Supporting sources
A price list or circular distributed broadly as seasonal marketing does not constitute an offer. Recipients have reason to know the sender does not intend to conclude a bargain until it supplies a further manifestation of assent. Specific pricing and delivery terms do not convert the document into an offer when the distribution method and absence of commitment language indicate preliminary negotiation.
Supporting sources
A statement that quantities are limited and subject to confirmation signals that the sender does not intend to be bound until it provides further assent. The absence of any confirmation procedure reinforces that recipients should understand the catalog as an invitation rather than an offer. Prior course of dealing showing automatic fulfillment does not overcome explicit reservation language.
Supporting sources
An offer addressed to a specified class such as local farmers empowers only members of that class to accept. A person outside the described class who performs cannot form a contract because the offeror never granted that person power of acceptance. The hardware store owner who purchased corn from farmers therefore could not accept the offer limited to local farmers.
Supporting sources