of cows and acceptancegreenspun.com : LUSENET : Lessig's Contracts : One Thread
no big terms at all, just good old common sense formal ontology...
given the lack of feedback from my last few posts, i will just consider this space a forum for qualifying things that are left dangling in class.
as to ontology v. epsitemology, my understanding is that there is an ontological question when one deals with what something is, i.e., the existence criteria for an entity (what makes a "shooting" different from a "killing"? do holes exist as entitites or are they just non-existent parasites as figments of our imagination...) while the epistemological question deals with how we justify entertaining a belief (how do i know that just because in the past has kept me awake in the morning it will not put me to sleep tomorrow? how do i know that i exist? blah blah).
applying this to the offer and acceptance problem, i held today that there is some ontological mess in the case where the letter i send, which says "acceptance" on top, can be either an acceptance or a counteroffer, depending on some event that happens after my writing it (bringing it into existence) and that has no connection with its existence as such.
my problem here is not epistemological. i am not concerned with how i know whether something is an acceptance or a counteroffer, but rather with what the existence criteria, or qualities, or whatever, are, that make up an acceptance and distinguish it from a counteroffer.
i have doubts as to the possibility that the _function_ of that letter, which is determined according to the exterior event of arrival of the rejection letter, comes into determining whether what i have sent is an acceptance or a counteroffer.
normally, it is clear: if i write an "acceptance" letter, and mistype a substantial term, what i wrote is going to be a counteroffer, regardless of my knowing or not knowing it at the time it comes into existence.
but when i send the "acceptance", can we really buy it that it is an acceptance unless the mailman rushes to the house and gets there before the acceptance, and if he trips on the way there it still is an acceptance, while otherwise it becomes a counteroffer?
i think not.
say we live on a twin contract earth (cf. the article about default terms) in which an offer is a cow, an acceptance is a horse, and a counteroffer is a donkey. so i receive a cow (offer), send a rejection (a racoon? this one is irrelevant), then later i send a horse (the acceptance). the racoon gets there before the horse: does that turn the horse into a donkey or is it merely the case that the horse can only be used as a donkey?
this is meant to clarify the issue.
as a policy matter, i hold that it creates some drama as to the status of what we do in contracts, and the events that take place there, if we allow things to change their nature after they have come into existence. and as such, while it may seem trivial in this case, in which we can just bag it and live with the fact that for a while the letter may or may not be an acceptance, it creates trouble in other cases once we have allowed our world to be dominated by things that change like this...
of course, now that we know that a pregnant cow is not the same one as the barren one, and that in fact the barren cow never existed, we may just have to modify a few of our beliefs...
but after all, they don't wear breeches.
-- Anonymous, December 01, 1998
I am going to make a stab at answering this, although usually you are operating at a conceptual level that lies a bit outside my grasp. I think it makes a great deal of sense that the significance of a letter depends somewhat the context in which it is received. As we have discussed in class, substance is largely defined by the circumstances surrounding an action or an utterance. Just as the acceptance is only an acceptance in relation to the terms provided for in the contract, so too the acceptance's status as acceptance can be determined by its relation to a rejection. There is no such thing as a universal acceptance -- a letter or a sentence's status as acceptance is only conferred due to the existence of certain circumstances, one of which might be the previous mailing of a rejection. Although you phrase it as an acceptance being "turned into" a counteroffer, I argue that it is a letter that can be either an acceptance or a counteroffer (or just a friendly hello) depending on the circumstances surrounding it -- in other words, it was never a platonic acceptance that got perverted into a counteroffer just because a rejection was sent -- it was nothing specific until certain contexts fell into place, in this case the time of the delivery of the rejection. I should say, however, that I think it is important to think about why these rules exist. Putting aside philosophical, linguistic or whatever other discipline might have a stake in this, these rules help to protect parties. There are real live people sending back and forth these offers, acceptances, rejections, etc. Contracts, in theory, exist to help people live their lives by exchanging goods and services on acceptable terms. Parties can only do this if they can have expectations on what things mean. From the offeror's perspective, he needs to be able to rely that the rejection he received in the mail IS a rejection, so he can go about contracting elsewhere for these goods. Otherwise, contracting imperils the choices that people have. How else can the offeror conduct his business if he has to question the validity of every rejection? The offeree gets a second chance by later sending off a counteroffer (when sent a belated acceptance) and the offeror can reevaluate his choices, but otherwise, we are holding the offeror hostage to his expectation, rather than allowing expectation to empower people to contract for goods.
I don't know if this helps. But I thought you were owed a response!
-- Anonymous, December 02, 1998