lateral contract such as is suggested is to be imported into the law, there seems logically little reason to exclude any offer from the same construction. If beginning performance is requested as the consideration of a collateral contract in the case of an offer for a unilateral contract, taking the offer under advisement is equally requested in an offer for a bilateral contract and should equally make it necessary for the offerer to hold his offer open for a reasonable time. This may well be desirable, but would better be reached as it has been in many European countries 71 by statute. It is urged in support of the suggestion of a collateral contract, that the parties cannot contemplate that the offer may be revoked after part performance. Doubtless this is true. It is equally true that parties do not generally understand that when an offer is given, which is expressed to be open for a stated time, that it may nevertheless be revoked before that time. In other words, parties do not altogether understand the law governing the formation of contracts, but mutual assent to rules of law is not necessary, though it is certainly true that a rule of law which is opposed to the understanding of business men is undesirable unless there are strong reasons of policy in its favor.72 38-39 § 60a. Attempted solutions of the difficulty. The same problem exists in the civil law and has been met in modern codes by enacting that the offer is irrevocable until the offeree has had a reasonable time for performance.73 property, and a commission for making 71 Valéry, Contrats par Correspond- 72 See further a discussion of the problem by Professor Corbin, 26 Yale L. J. at pp. 194–196. 73 See Valéry, Contrats par Correspondance, § 172. In the absence of such legislation the weight of opinion in the civil law is that an offer may be revoked, id., § 170, though it is to be observed that the fundamental reason why an offer is revocable in our law-namely, because no consideration has been given for it, and promises without consideration are not binding, does not exist in the Civil Law. This solution seems desirable but hardly attainable without a statute. It has also been suggested in the Civil Law that the offerer should be held liable in tort for inducing the offeree to begin performance and then withdrawing the offer.74 There seems little warrant for such a suggestion in our law. No doubt in so far as the offeror has accepted a benefit from the offeree's part performance, he would be liable on principles of quasi-contract for its value.75 Frequently, however, part performance by the offeree will not enure to the offeror's benefit, and unless the defendant has violated a legal duty the right to recover on a quantum meruit based on a quasicontractual obligation is based not on the detriment which the plaintiff may have suffered, but upon the benefit which the defendant has received.76 The remedy previously suggested of holding the offeror liable in tort for inducing the offeree to begin performance and then withdrawing the offer, seems therefore, if it were permissible, more complete and satisfactory." As a matter of positive decision the right of 74 This theory of the offeror's liability was first carefully elaborated by von Ihering, Jahrbücher für Dogmatik, IV. p. 1 seq., under the designation of culpa in contrahendo. For the varying views of other writers, see Windscheid, Lehrbuch des Pandektenrechts, II, § 307, n. 5 (8th ed.); Valéry, 185; Swiss Code of Obligations, Art. 8. 75 In Blain v. Pacific Express Co., 69 Tex. 74, 78, 6 S. W. 679. The court said, obiter in regard to partial performance of an offer of reward for the arrest of two persons, "No facts are stated, such as that the plaintiffs were prevented from arresting both the persons for whom a reward was offered by the fault or fraud of the defendant, from which the law would raise a new contract and give a remedy on a quantum meruit." And in Zwolanek v. Baker Mfg. Co., 150 Wis. 517, 137 N. W. 769, 44 L. R. A. (N. S.), 1214 the court said, speaking of such an offeree, "he is entitled to the whole reward, or at least to compensation on quantum meruit." 76 Infra, § 1478, et seq. 77 The case of G. Ober & Sons Co. v. Katzenstein, 160 N. C. 439, 76 S. E. 476, lends some support to one who claims such a remedy. The court there held that though an agreement for the sale of fertilizer gave the seller the option to cancel the order, the seller was liable on cancelling it for damages sustained by the buyer before exercise of the option, such as the expense of preparing the land for the crops, which was useless because of lack of fertilizer, and the loss of profits on such part thereof as the buyer before exercise of the option, had contracted to resell, unless the buyer could have obtained, and his customers would have taken, any other brand. An agreement with an absolute right reserved to either party to cancel it, is not a contract. See supra, § 45. It seems in effect an offer for a unilateral contract. See also Welch v. Lawson, 32 Miss. 170. the offeror to revoke his offer even after part performance by the offeree has the support of a few American cases,78 but in view of the practical hardship of the situation it is by no means improbable that the theory of a collateral contract will find favor.79 In most of the few cases where the question has arisen, the offeror has been held bound, but it is not clear on what theory. Sometimes at least the court seems to have thought it possible to turn the transaction into a bilateral contract by a beginning of performance on the part of the offeree. What obligations the offeree assumes by beginning to perform is, however, not always considered.80 The death 78 Biggers v. Owen, 79 Ga. 658, 5 S. E. 193; Lascelles v. Clark, 204 Mass. 362, 372, 90 N. E. 875; Smith v. Cauthen, 98 Miss. 746, 54 So. 844. See also Stensgaard v. Smith, 43 Minn. 11, 44 N. W. 669, 19 Am. St. Rep. 205; Cook v. Casler, 87 N. Y. App. D. 8, 83 N. Y. Supp. 1045; White v. Allen, Kingston &c. Co., 69 N. Y. Misc. 627, 126 N. Y. Supp. 150; Butchers' Advocate Co. v. Berkof, 94 N. Y. Misc. 299, 158 N. Y. S. 160 (cf. North Side News Co. v. Cypres, 75 N. Y. Misc. 129, 132 N. Y. S. 806, Post v. Frank, 75 N. Y. Misc. 130, 132 N. Y. S. 807). 79 In Brackenbury v. Hodgkin, 116 Me. 399, 102 Atl. 106, the court admitted that "the offer was the basis, not of a bilateral contract requiring a reciprocal promise, a promise for a promise, but of a unilateral contract requiring an act for a promise," yet held that in spite of repudiation by the promisor after part perfomance, there was "a completed and valid contract" because the plaintiffs had in acceptance of the offer moved from Missouri to Maine, entered upon the performance of the specified acts and continued performance as long as they were permitted to do so. 80 The only reference to the matter in the English books is in Offord v. Davies, 12 C. B. (N. S.) 748, where in the course of the argument Williams, J., asked: "Suppose I guarantee the price of a carriage to be built for a third party who, before the carriage ts finished, and consequently before I am bound to pay for it, becomes insolvent, may I recall my guaranty?” The counsel replied "Not after the coach builder has commenced the carriage," and Erle, C. J., added; "Before it ripens into a contract, either party may withdraw, and so put an end to the matter. But the moment the coach builder has prepared the materials he would probably be found by the jury to have contracted." A somewhat similar suggestion is made by the Illinois Supreme Court in Plumb v. Campbell, 129 Ill. 101, 107, 18 N. E. 790. The court says that the appellant (the offeror) could be bound in three ways: "First by appellee engaging within a reasonable time to perform the contract on his part; second, by beginning such performance in a way which should bind him to complete it, and, third, by actual performance." See also A. B. Dick Co. v. Fuller, 213 Fed. 98; Blumenthal v. Goodall, 89 Cal. 251, 26 Pac. 906; Los Angeles Traction Co. v. Wilshire, 135 Cal. 654, 658, 67 Pac. 1086; Miller v. Moffat, 153 Ill. App. 1; Vigo Agricultural Soc. v. Brumfiel, 102 Ind. 146, 1 N. E. 382, 52 Am. Rep. 657; Loyd Mercantile Co. v. Long, 123 La. 777, 49 So. 521. In Zwolanek v. Baker Mfg. Co., 150 Wis. 517, 137 N. W. 769, 773, the court said, "It is true, as a of either party after part performance but before full performance by the offeree under an offer for a unilateral contract, since death effeces a revocation of an offer which has not yet ripened into a contract,81 presents the same problem.82 § 60b. Whether refusal of tendered performance prevents unilateral contract. An analogous difficulty concerning revocation of offers for unilateral contracts exists where the act requested by the offer is one which can be performed only with the cooperation of the offeror as by accepting goods tendered. It may be supposed that the offeror refuses to give such cooperation when tender of performance is made to him. On theory it seems impossible to say that a contract has been formed in such a case and yet the hardship ensuing may be great. There can be no doubt that where the offer contemplates either a unilateral or bilateral contract, the offeror may revoke up to the very instant that acceptance is made. The offeror may see the approach of the offeree and know that an acceptance is contemplated. If the offeror can say "I revoke" before the offeree accepts, however brief the interval of time between the two acts, there is no escape from the conclusion that the offer is terminated. Where, however, the offeree actually tenders performance while the offer is still open, the same result though no less clear in theory, seems harsher. Doubtless the difficulty would generally be avoided in practice by dealing with the offer as if it were for a bilateral contract general proposition, that a party making an offer of a reward may withdraw it before it is accepted. But persons offering rewards must be held to the exercise of good faith, and cannot arbitrarily withdraw their offers, for the purpose of defeating payment, when to do so would result in the perpetration of a fraud upon those who, in good faith, attempted to perform the service for which the reward was offered. First Natl. Bank v. Hart, 55 Ill. 62." See also Ashley on Contracts § 30 and 28 L. Qu. Rev. 101, and cf. cases of subscriptions held binding as soon as contemplating a promise by the offeree of immediate performance, which being tendered gives a right of action on the contract. This method of reasoning, however, evades rather than meets the problem for it seems undeniable that an offeror may propose a unilateral contract which shall be preceded by no bilateral agreement, and shall require as consideration not the mere tender of an act, but actual performance, which can only be accomplished with the coöperation of the offeror.83 If it be conceded that no bilateral contract existed and the offeree was under no obligation to perform,84 does the tender create such an obligation? If not what is the nature of the contract? The offeror has received no consideration, and the fact that this is his own fault, seems insufficient to supply this requisite. § 61. When offers are irrevocable. Every offer, as has already been seen, is a promise.85 It follows that if a seal is put upon an offer, it becomes a binding promise.86 The promise is, of course, conditional and until the performance of the condition is made or tendered, there will be no liability upon the promise, but in this respect the promise does not differ from any conditional promise in a contract. So, if consideration is paid for an offer, though no seal is attached, the offer is a contract. Such contracts are generally called options.87 83 A typical case of this sort is an offer to buy or sell for cash. In Ide v. Leiser, 10 Mont. 5, 24 Pac. 695, 24 Amer. St. Rep. 17, the plaintiffs pleading stated an offer by the defendant to sell land for $1000. The plaintiff alleged tender within the time limited by the offer and a refusal. The court without discussing the point suggested, and assuming apparently that a bilateral contract was formed (and it is not perhaps clear that the offer might not properly have been so construed), held the defendant liable. So McKenzie v. Stewart, 196 Ala. 241, 72 So. 109; Fisk v. Batterson, 165 N. Y. App. Div. 952, 150 N. Y. S. 242, where the offers were for the purchase of stock. 84 As it was in McKenzie v. Stewart, 196 Ala. 241, 72 So. 109. 85 See supra, § 25. 86 O'Brien v. Boland, 166 Mass. 481, 44 N. E. 602; Thomason v. Bescher, 176 N. Car. 622, 97 S. E. 654, 2 A. L. R. 626, and note 2 A. L. R. 631; Gaar Scott Co. v. Ottoson, 21 Manitoba L. R. 462, 19 West. L. R. 472. See also infra, § 217. 87 "In the case of Black v. Maddox, 104 Ga. 157, 30 S. E. 723, an option is defined to be 'the obligation by which one binds himself to sell and leaves it discretionary with the other party to buy . . . which is simply a contract by which the owner of property agrees with another person that he shall have |