The Language of Offer and Acceptance: Speech Acts and the Question of Intent

Abstract

Language and law interact in a number of ways, the most obvious of which is that laws are expressed in language. Lawyers often look at language to determine the meaning of specific statutes. In such a relatively artificial context, words are chosen and interpreted with unusual care. But elsewhere, the law must interpret utterances of a more spontaneous sort, where the actual meaning of a word or phrase is not always found in a standard dictionary and a grammar text. This especially holds true when the law must give legal effect to the utterances of private individuals. The interpretation of private utterances is an important part of contract law, particularly in the area of offer and acceptance. Courts attempt to discover whether the parties have assented to an agreement by examining their words and deeds. There is no standard verbal formula or prescribed conduct which invariably signifies assent. On the contrary, the case law suggests a great variety of ways to reach agreement. This Comment will elaborate a theory concerning the elusive relationship between words and their legal effect. It will explain why use of the word "offer" does not necessarily denote a legally binding offer. Conversely, it may explain why an offer need not contain the word "offer" or a similar expression. The analysis will be based on speech act theory, a widely used approach to the philosophy of language. Philosophers of language are interested in many of the same types of problems as confront lawyers. Despite their varying points of departure, the two disciplines have reached surprisingly similar conclusions. This Comment makes two main points. The first is that offer and acceptance are not matters of expression or manifestation of intent. Rather, they are acts that commit the speaker to a particular course of conduct. The second major point is that although the intent of the speaker does not create the obligation, it is nonetheless necessary that the act be accompanied by a certain state of mind. Loosely stated, the speaker must intend to create in the hearer the perception that in saying the words, the speaker is committing himself to a particular proposal. The first Part of this Comment will review the general nature of the problem of offer and acceptance. Part II sets out the basic framework of speech act theory. All utterances have a particular force. Some, for example, assert that a particular state of affairs is true. Offer and acceptance belong to a class of speech acts that have the force of committing 1. B. VERMA, MUSLIM MARRIAGE AND DISSOLTrION 159-61 (1971); see also K. HODKINSON, MUSLIM FAMILY LAW 220 (1984). Shia law further allows a formula in question format: the husband must answer "yes" to a ritualistic question regarding whether he has divorced his wife. B. VERMA, supra at 161. 2. B. VERMA, supra note 1, at 159, 161. The same generally holds for marriage, which, to be effective, requires only a declaration and an acceptance. Shia law again prescribes formulas. Most other sects allow greater latitude in choice of words...

Hypothetical Questions as Strategic Devices in Negotiation

“…4. To understand the main differences between the speech act of proposing and the speech act of offering, see Aakhus (2005) and Tiersma (1986). Searle (1975: 81, 82) observed, indirect speech acts with commisive illocutionary force can be advanced via hypothetical statements because within the propositional content of these statements the speaker can indicate that some of the preparatory conditions for the performance of the act obtain, such as the speaker's ability to perform a particular act, or the listener's wish for the speaker to perform that act, or that there is a "reason" for advancing the act.…”

“… To understand the main differences between the speech act of proposing and the speech act of offering, see Aakhus () and Tiersma (). …”

The Use of Offer and Acceptance and their Commissive Implication in the Sulha Tribunal

“…This follows Fiorito's (2006) argument that a discourse only performs a legal act if placed in the legal domain. Given the fact that legal setting requires speech acts that are committal, it will be of necessity, therefore, to use commissive speech acts in performing legal actions (Fiorito, 2006;Tiersma, 1986). Some of the speech acts used in the formation of valid legal agreements, particularly in a conventional contract law, are offers, acceptances and considerations (Schane, 2012).…”

“…Some of the speech acts used in the formation of valid legal agreements, particularly in a conventional contract law, are offers, acceptances and considerations (Schane, 2012). The speech acts of offer and acceptance had earlier been attested by Tiersma (1986) in legal settings. According to Tiersma (1986), the speech act of offer and acceptance commit participants to future course of action.…”

“…The speech acts of offer and acceptance had earlier been attested by Tiersma (1986) in legal settings. According to Tiersma (1986), the speech act of offer and acceptance commit participants to future course of action. In this case, the speaker wants the world to be changed to fit his words which can be rejected or accepted by the hearer.…”