The Power to Contract and the Offer-and-Acceptance Analysis of Contract Formation

Abstract

Abstract The offer-and-acceptance analysis has long been questioned as not (easily) applicable to certain methods of contracting. This paper looks at this analysis through the prism of normative powers and identifies much deeper problems with the analytic explanation of how such unilateral normative powers as offer and acceptance can generate such a normative result as concluding a contract. It argues that even if the powers to offer and accept are exercised, as they are in certain methods of contracting, these are not the normative powers that create contractual obligations; such obligations are always created by the jointly exercised power to contract. The paper substantiates an account of the power to contract as a sui generis normative power and explains the role the unilateral powers to offer and to accept play when they are exercised, while also explaining why there is no need to ‘invent’ offering and accepting where there are none.