Foster v. Ohio State Univ. - 41 Ohio App. 3d 86, 534 N.E.2d 1220 (1987)

Rule:

A reply to an offer which purports to accept but is conditional on the offeror's assent to terms additional to or different from those offered is not an acceptance but is a counteroffer.

Facts:

Ohio State University, through Andrew Broekema, Dean of the Ohio State College of Arts, by letter dated May 3, 1983, offered plaintiff, Philip E. Foster, an eleven-month appointment as Chairperson and Associate Professor of the Department of History of Art at the Ohio State University beginning July 1, 1983. The letter concluded: "If the terms and conditions of this letter are acceptable to you, please sign the enclosed copy and return it to my office." Subsequently, Dean Broekema notified Foster by express mail dated May 25, 1983: "Unless an answer to letter of offer, dated May 3, 1983, is received in my office by Thursday, June 2, 1983, offer for position of Chairperson and Associate Professor, Department of History of Art at The Ohio State University, is withdrawn." The record further indicates that, on June 2, 1983, Foster telephoned Dean Broekema collect and left a message with his secretary that Foster accepted the position effective July 15, 1983. On June 7, 1983, defendant notified Foster that, since he had failed to accept in writing by June 2, the offer was revoked. On June 11, Foster signed the May 3 letter notifying defendant of his acceptance.

The Court of Claims thereafter granted Ohio State University’s motion for summary judgment finding that Foster’s failure to accept in writing the terms of Ohio State University’s offer by June 2 barred his later acceptance on June 11. Foster appealed.

Issue:

Was there an acceptance by Foster of Ohio State University’s offer?

Answer:

No.

Conclusion:

The court affirmed, reasoning that the offer, which was unsupported by consideration, was subject to revocation at any time. Ohio State University’s time requirement did not modify the previous specification of acceptance in writing but merely put a time limit on the duration of the offer. Further, Foster’s purported acceptance was conditional on his assent to a modified date for commencing employment. Because the acceptance did not meet and correspond with the offer in every respect, no contract was formed. A reply to an offer which purports to accept but is conditional on the offeror's assent to terms additional to or different from those offered is not an acceptance but is a counteroffer.