For the average consumer, the term offer has a simple and straight-forward meaning. However, when applied to the law of Contract, it has a very specific meaning. The confusion between these two meanings is often manipulated, and used against consumers.
In the law of Contract, “offer” is one of the stages in the creation of a binding and legally enforceable contract.
To put it simply, a contract is created where one person makes an “offer”, the other person responds with “acceptance”, and the “acceptance” is “communicated” to the person who first made the offer.
A Purchaser is told by an estate agent that the Vendor of a property will only consider offers if they are in writing, and fills out a Contract Note in the presence of the
Purchaser. The agent then tells the Purchaser that the “offer” will be submitted to the Vendor to see if it’s acceptable. The Vendor signs the Contract Note to confirm that the offer is accepted, and the estate agent rings the Purchaser to “communicate” the Vendor’s acceptance.
It may come as a complete surprise to the Purchaser to be told that he is now the new owner of the property. This is because many Purchasers believe that making an “offer” is just a prelude to “signing a Contract”. The Contract Note is signed in the belief that it is a way to “test the water” before committing.
Some agents simply allow Purchasers to fall victim to their own naivete. Others actively deceive Purchasers by using the following line:
“No, it’s not a Contract, it’s just an offer. There’s no Contract unless the Vendor wants to accept your offer.”
While the words themselves are quite true, the obvious intent is to have the Purchaser enter into a binding and enforceable Contract, whether or not the Purchaser is ready to do so. The deception is aided by the Contract Note itself, because of it’s title Contract Note, and because it appears to be too brief to constitute a real contract. The Contract Note also carries a little warning: “By signing this document you will be legally bound by it”. The word “contract” is not used in the warning, and the warning is easily glossed over.
Making an offer is a serious matter. Aways obtain pre-purchase contract and disclosure statement advice before signing ANYTHING!