Not What, but When Is an Offer: Rehabilitating the Rolling Contract

A number of courts have held that a contract is formed when deferred terms found inside the package are reviewed by the buyer and accepted by some act—usually use of the good. This “rolling” contract approach has been widely criticized by commentators as an abomination of contract law that ignores a true application of the U.C.C., as well as the spirit of that code. However, the approach is not without its allure, as it permits contracts to be formed in an efficient manner that may very well appeal to consumers. Yet too strict of an adherence to the approach threatens to impose terms upon parties that they never expected or agreed upon; but conversely, too strict of an adherence to traditional concepts of offer and acceptance threatens to displace terms that were contemplated and not objectionable. Though existing contract law does a good job of defining contract offer, the trickier issue is identifying when the offer is actually made. If parties to a contract know that there is more to the contract than simply the price and the good, then it should come as no surprise that more terms are to come, or that a more detailed offer will be forthcoming. Thus, in some scenarios, it is perfectly reasonable to assume that the contract has not been formed in-store, but rather a deferred offer will come later. Thus rolling contract theory can be explained under a legal realism approach, as influenced by relational contract theory; however, this is not to say that all contracts are now subject to the rolling contract approach. This Article describes how legal realism and relational contract theory can be used to explain the rolling contract approach and makes suggestions for how relational contract theory can be used to aid courts in determining which contracts involve a rolling or deferred offer.