The "Common Will" of Offer and Acceptance

By Catherine Valcke

Prof. Catherine ValckeAt common law, the existence of a valid contract is determined by the parties' declarations, not by their private intentions. Such was the thrust of Justice Blackburn's now famous statement in Smith v. Hughes:

If whatever a man's real intention may be, he so conducts himself that a reasonable man would believe that he was assenting to the terms proposed by the other party, ... the man thus conducting himself would be equally bound as if he had intended to agree to the other party's terms.

The court went on to state that a contract for the sale of oats could be valid despite the buyer having entered it under the assumption that the oats were old, whereas they turned out to be new.

Immanuel Kant's writings are helpful for purposes of clarifying the reasons behind this "objective theory" of contract. In The Doctrine of Right, Kant explains that property in things can be acquired originally (through de facto possession) or derivatively (through contract). Original acquisition is possible only where the thing is not already owned. Where the thing is already owned, only derivative acquisition can operate a direct transfer of property from the original to the new owner. (An indirect transfer would in contrast involve the original owner first abandoning the thing and the new owner subsequently acquiring it as a thing then no longer owned.)

Transfer of property through contract is "direct" in that it proceeds from what Kant calls the "united will" of two persons: "Transfer is therefore an act in which an object belongs, for a moment, to both together, just as when a stone that has been thrown reaches the apex of its parabolic path can be regarded as, for just a moment, simultaneously rising and falling…" But how can two separate individuals "unite" their wills in this way? Presumably, this requires, at the very least, that these wills be expressed simultaneously. Yet, the offer and acceptance necessarily are successive, since an acceptance by definition is formulated as a response to an offer.

This difficulty can only be resolved, according to Kant, by distinguishing the intellectual from the empirical standpoints. From a strictly empirical standpoint - in real time and space - the parties' mutual declarations can only be successive. But from an intellectual standpoint, it is possible to conceive of the initially empirical declarations of the parties as detaching themselves from their respective empirical conditions and merging into one another as "pure will." From the intellectual standpoint, therefore, contract proceeds from the objectification of the parties' subjective intentions into a single, common will.

The intellectual perspective similarly entails that the parties themselves be conceived, not as empirical subjects, with particular bodies, ambitions, needs, desires, etc…, but rather as objective will-bearers, as Right holders:

The concept of Right … has to do, first, only with the external … relation of one person to another, insofar as their actions, as facts, can have (direct or indirect) influence on each other … [S]econd, it does not signify the relation of one's choice to the mere wish (hence also to the mere need) of the other … but only a relation to the other's choice. Third, … no account at all is taken of the matter of choice, that is, of the end each has in mind with the object he wants ...

Thus was poor old Hughes forced to take delivery of the new oats which he never intended to buy, only because he had objectively manifested his intention to do so ...

This article was first published in the Spring 2005 issue of Nexus.