What is Construed as Offer and Acceptance?

An offer is an indication by someone expressing their willingness to make a contract without any further negotiations. Contracts are then formed by implied or express consent. It’s said the contract begins once acceptance of an offer has been communicated. This method was established in the 19^th century and essentially identifies the minute there is a “meeting of the minds,” or consent. If both parties are not on the same page, or one attempts to mislead the other, then there is not a contract.

What are Advertisements?

In most scenarios, an advertisement is not considered an offer. They are considered an invitation to begin negotiations. The reason for this is because if a contract was formed, no one could ever advertise without fear of being sued. Imagine placing an advertisement for delectable tomatoes. Someone comes in and says they gladly accept your offer to purchase these delectable tomatoes. And, follows up with the statement that if they are not delectable, they plan to sue.

Although advertisements are not generally considered offers, it doesn’t mean a business can make any claims they want about a project. Advertisements must be true, or at least be reasonably based on fact. You are also prohibited from using bait and switch tactics to entice a customer to purchase something but then try to get them to purchase a different product instead.

Invitation to Treat

You may hear the term invitation to treat in conjunction with advertisements. An invitation to treat essentially means you’re invited to make an offer. That is what an advertisement in the newspaper typically is. The person placing the advertisement is not making an offer, they are inviting people to come in and make an offer to purchase. Using the earlier example with the tomatoes, a customer can come in and offer to buy the delectable tomatoes at a specified price. The store can then accept or reject that offer.

This is what separates an offer from an invitation to treat. The objective of an offer is to form a contract whereas the objective of an invitation to treat is to receive offers and negotiate to create the terms for a contract. When an offer is accepted, you’ve formed an agreement whereas an invitation to treat becomes an offer when there is a response.

Other examples of an invitation to treat include:

• Train station timetable showing timetables and fares
• Menu card for a restaurant that displays prices

Retaining a Small Business Attorney

If you are a small business owner and need assistance with contracts and other legal matters related to your business, it’s good to meet with a skilled Washington DC business litigation lawyer. The team at Tobin O’Connor Concino P.C. specializes in business litigation, including helping small businesses get set up and deal with legal issues that arise. Contact our office today to set up a consultation.

What are Unforeseen Circumstances?

Large scale disasters, especially those related to terrorism and weather, are some of the circumstances that are typically covered under a force majeure clause. Natural disasters like earthquakes, floods, hurricanes, and other massive weather disturbances have been labeled as “acts of God” in many contracts. Other potential disasters center around war, terrorism, health outbreaks, travel strikes, and more. In regard to meetings, any event that prevents a certain percentage of attendees from being able to make the meeting may be covered by force majeure.

It’s important that whatever activities you want protection from, you spell out in detail. Courts tend to view these types of clauses in the strictest sense, so if you include terrorism and you breach your contractual duties over a “threat” of terrorism, you are likely on the hook for the other parties’ damages.

Prepping for Disaster Recovery Situations

Even a well-drafted force majeure clause may not be enough to absolve you of liability. For example, a company that offers software related services to customers still has an obligation to have a business continuity and disaster recovery plan in place. How does this company plan to restore services if a hurricane hits the region? You can’t hide behind a force majeure clause as an excuse to get out of your business obligations. A court is likely to look at the particular circumstances. Should the vendor have anticipated the event and taken certain steps that would’ve mitigated the risk? After the event, did the vendor undertake reasonable efforts to restore service to its customers without further delay?

Preparing a Force Majeure Clause

Each situation is different, and using boilerplate language for any clause that can put your business at greater financial risk is not recommended. You should look at your individual situation and what the contract covers. Are you planning a meeting for 500 people during the winter? If there is a chance that attendees may struggle getting to this location on said date, be clear on that issue. The risk of snow in winter is not enough to qualify as justification for not holding the meeting.

You should look into separating clauses that cover acts of God versus other situations that someone else does have control over. That might be renovations at a conference center, a hotel closing or changing ownership, labor union disputes, etc.

In addition, it’s important to know that you cannot hide behind a force majeure clause to get out of a bad business deal you made a mistake on.

Hiring a Skilled Business Attorney

Having the right Washington DC attorney can make a huge difference in a contract dispute matter. The attorneys at Tobin O’Connor Concino P.C. have over 20 years’ experience handling business disputes and other legal matters for both small business and larger corporations. Contact our office at 202-362-5900 to schedule a consultation today.