This post is not offered as legal advice and nothing contained is to be construed as an offer to contract. The information provided is the opinion of the author, do your own research, and come to your own conclusions. You are a thinking human being; don't be lazy and demand that someone else do the thinking for you.
Conditional Acceptance is both a concept and general technique.
The goal is to come to a complete agreement. Without that goal, there is no reason to maneuver or utilize this particular technology. When utilizing a conditional acceptance your intent must be to come to an agreement, else you are intentionally acting in a fraudulent matter or at the minimum the contract is voidable. All agreements/contracts must close to be binding. Just throwing paper at someone with the words “conditional acceptance” is very weak way to compel an outcome. We want to agree with our adversary, but we must ask questions when we don't understand the offer. If we understand the offer, we may want to “test” the elements; we utilize a conditional acceptance.
A conditional-acceptance does not close a contract, when used judiciously it can close or open the gap. Always keep that in mind, as you utilize your conditional-acceptance process.
Consider the following definitions from Blacks Law 5th:
“Condition: A future and uncertain event upon the happening of which is made to depend on the existence of an obligation[efn_note]This is describing a condition that creates a positive performance; necessary to close negotiations and cement the agreement between the parties.[/efn_note], or that which subordinates the existence of liability under a contract to a certain future event. Provision making effect of legal instrument contingent upon an uncertain event. See also Constructive condition; Contingency; Contingent; Proviso.
A clause in a contract or agreement which has for its object to suspend, rescind, or modify the principal obligation, or in case of a will, to suspend, revoke, or modify the devise or bequest. A qualification, restriction, or limitation modifying or destroying the original act with which it is connected [efn_note]This is describing how a negative condition which would kill any agreement between the parties. To wit, after coming to agreement X,Y, and Z. If you have done this then we no longer have an agreement. The parties are no-longer obligated to perform on the agreement.[/efn_note]; an event, fact, or the like that is necessary to the occurrence of some other, though not its cause; a prerequisite; a stipulation.”
Conditional: An engagement to pay the draft or accept the offer on the happening of a condition.[efn_note] In such a case its best to lay clear terms as to what you will give or preform on; when they accept your offer.[/efn_note] A “conditional acceptance” is in effect a statement that the offeree is willing to enter into a bargain differing in some respects from that proposed in the original offer.[efn_note]This applies more to agreements already in place; when “inquiring” its best to keep the conditions around the supposed elements of the agreement, do not ask for things not in the agreement (like I will continue to pay on the condition; you buy me a puppy). This prevents you from creating a controversy in the original offer and the conditional acceptance from being construed as a counter-offer.[/efn_note]. The conditional acceptance is, therefore, itself a counter offer.[efn_note]Both “Condition” and “Conditional” can be found in Blacks Law 5th, page 265.[/efn_note]
Acceptance: The taking and receiving of anything in good part, and as it were a tacit agreement to' a preceding act, which might have been defeated or avoided if such acceptance had not been made. The act of a person to whom a thing is offered or tendered by another, whereby he receives the thing with the intention of retaining it, such intention being evidenced by a sufficient act.[efn_note] Aetna Inv. Corporation v. Chandler Landscape & Floral Co., 227 Mo.App. 1 7, 50 S.W.2d 195, 197.[/efn_note] The exercise of power conferred by an offer by performance of some act.[efn_note] In re Lamey's Estate, 148 Misc. 871, 266 N.Y.S. 564.[/efn_note]
Conditional Acceptance[efn_note] This particular definition is in relation to goods/collateral agreements; so keep it in mind this particular combination of the words “conditional” and “acceptance” is a statutory technology; as opposed to the concept in contracts. [/efn_note]: An engagement to pay the draft or accept the offer on the happening of a condition. A “conditional acceptance” is in effect a statement that the offeree is willing to enter into a bargain differing in some respects from that proposed in the original offer[efn_note]Counter offer: A statement by the offeree which has the legal effect of rejecting the offer and of proposing a new offer to the offeror. Restatement of Contracts, § 60. However, the provisions of U.C.C. § 2-207(1 )(2) modifies this principle of contract law as regards sales of goods by providing that the “additional terms are to be construed as proposals for addition to the contract.” – Blacks Law 5th, page 315. [/efn_note]. The conditional acceptance is, therefore, itself a counter offer.”[efn_note] Both “acceptance” and “conditional acceptance” can be found on Blacks Law 5th, page 12. [/efn_note]
The In re Lamey case is about an undertaker suing an estate and demanding to be paid more than his original agreement with the deceased person. It has a great example of how a person cannot change the agreement after the fact; if they complied with a condition necessary for the acceptance to form an agreement. The following is quoted from that case:
“Suppose “A” were approached by “B,” who begged food and lodging and were to say to him, “No, I won't give it to you, but I will give you a chance to earn it. If you will stack the wood in my back yard I will give you this relief ticket.” If thereupon “B” were to do the act, the latter would not be heard to assert a claim that because he was an architect and had piled the wood into a replica of the Empire State building he was entitled in addition to the relief ticket to a payment of fifty dollars. In both cases the promisee is as much bound by the terms of the contract as if it had been in bilateral form.”
The Aetna case is a beautiful example of how the words accept/acceptance are not expressly needed to create an acceptance. Its a story about how a person drafting trade notes/acceptances[efn_note]Trade acceptance: A draft or bill of exchange drawn by the seller on the purchaser of goods sold, and accepted by such purchaser, and its purpose is to make the book account liquid, and permit the seller to raise money on it before it is due under the terms of the sale, and its principal function is to take the place of selling goods on an open account and when properly drawn, it is negotiable. Gilliland & Echols Farm Supply & Hatchery v. Credit Equipment Corp., 269 Ala. 190, 1 12 So.2d 331, 332. A draft drawn by a seller which is presented for signature (acceptance) to the buyer at the time goods are purchased and which then becomes the equivalent of a note receivable of the seller and the note payable of the buyer. – Blacks Law 5th, page 1338.[/efn_note] wanted to get out of an agreement in which another party cashed his acceptances as apart of a larger agreement. The act of acceptance is more apparent then just saying it, if someone cashed a check with those conditions attached then there is no argument that an agreement did not take place.
Be careful that you do not try to use a conditional acceptance to modify an agreement already in place, that would be a counter-offer and there is no obligation on the part of another to accept a counter-offer. If the goal is to disentangle yourself from a suspected-fraudulent agreement; then ask for the proof necessary to establish the elements of the contract. If I buy a house for $200,000 dollars its reasonable that I accept the offer on the condition that the seller has the deed (free and clear) to the property. If the offer has already been agreed then you cannot just change the terms by throwing paper at someone; you need to clearly think about the situation. Ask questions about the terms and then conditionally accept the answers; that opens the door to utilizing a conditional acceptance to create a more acceptable agreement. Redefining terms is a non-adversarial way to come to a fairer understanding between two parties.
Conditional-acceptance strategies are best utilized before there is a problem. You cannot buy insurance on the house, if the house has already burned down. Contracts are more than just a piece of paper; in ye olde days they were conditioned on a handshake, the paper was just a receipt. Conditional acceptance is just one tool in your arsenal; most things in life come down to a contract, or the refusal to honor an offer to contract. Wouldn't you like to live in a world where contracts closed with the shake of a hand? You can; but only if you are willing to take the next step and start educating yourself.
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