The Mailbox Rule In Modern Life: What Happens When The Text Isn’t Delivered?

 

By:  ML Student (@1L Student)

 

The Mailbox Rule:  A Classic In Contract Law

 

The mailbox rule is a classic in first year law student coursework. That weathered rule, taken from the 17th century English case Adams v. Lindsell, states that an acceptance of a valid offer is effective when the offeree deposits the acceptance in the mailbox. There are lots of reasons why this rule evolved; the court chose to create the rule in that case based on an argument that, if acceptance were only effective on delivery or receipt, the back and forth between parties could go on ad infinitum. Clearly, that is a very specious argument for many reasons.  For example, couldn’t one party simply accept and end the back and forth?  Regardless of the many flags we could throw, that case remains as the progenitor of our current mailbox rule. Here, let’s consider the applicability of the mailbox rule away from the 17th century and in more modern context. What happens, for example, if we send a text accepting the offer and the text is never delivered?

 

The Restatement’s Take On The Rule

 

First, it is useful to site current thought on the mailbox rule. The Restatement, Second, of Contracts describes the mailbox rule in section 63. The expectation, as explained, is that the manner in which the acceptance is transmitted be a ‘reasonable’ method. That means, in the modern day, acceptance by hot air balloon is probably suboptimal. Similarly, carrier pigeon is right out. So, in our fast paced world, how do we apply the mailbox rule if at all? What if we are negotiating, for example, by text message?

 

Text Messages Present A Special, Complex Issue

 

Text message presents several problems. First, when it is discussed in a typical 1L class, text messaging conjures an illusion that it is fairly instantaneous. However, we all know better. For example, texts are not always delivered in a timely fashion–if at all. We have all seen attempted text messages that are not received owing to issues like the prospective recipient being in a crowded place. You may have attended a football game where texts look like they are sent but are not, in fact, received. This is often because the network is locally overloaded.

 

 

Some “What Ifs”

 

There are other challenges with text message as a vehicle for acceptance. Consider, for example, whether messages sent by SMS (Short Messaging System) are all ‘texts’. By this, we mean that sometimes phones like the iPhone look like they are sending text messages when in fact they are using iMessage or another platform. So, we are left with the question, “Are all text messages created the same?”

 

At the end of the day we are left wondering how the mailbox rule applies in the text messaging situation. Is an acceptance of an offer valid if the text message is never received? Can we even be sure that, at times, it was sent? This can be challenging for reasons such as the fact that to the user it can appear that a text message was sent when in fact the message hasn’t left the phone. We have all been there, haven’t we?

 

At the end of the day the mailbox rule’s application in modern day is very challenging for multiple reasons. Where modes of message transport such as snail mail, email, and other modes may leave a more distinct fingerprint, we are often left wondering what exactly it means when a user thinks a text has been sent and it hasn’t. At times it is not as definite as depositing a letter in a box.   Modern thoughts on mode of acceptance are many.

 

More Unique Situations Are Bound To Arise

 

At the end of day, in the modern world, we are still wrestling with what constitutes acceptance given the fast pace of modern electronic communication. Clearly, we have not even touched upon more unusual ideas such as text messages that are scheduled to be sent in the future, and similar interesting situations that arise because of the current state of communication.

 

In conclusion, the mailbox rule’s application in the modern world is very challenging. Some contend that the mailbox rule is in line with the objective theory of contracts in that it allows courts to see an action on the part of the offeree as they execute their power of acceptance. Clearly, there is an equally strong argument for the mailbox rule as part and parcel of subjective contract theory in that it focuses highly on intent and which party knows what at which time. Still others see the mailbox rule as a bridge or stopgap measure that tries to clarify the obvious challenges inherent in the object theory of contracts (focusing on tangible action) and the inherently subjective nature of who knew what and when they knew (more subjective theory of contracts).

 

The rule will no doubt continue to be explored by the courts in the modern era. When the next communication revolution occurs, we will be wondering what it means to accept a contract via Apple watch and other similar devices.