- Tom Cummins
Is a counteroffer a rejection?
Moman v. Johnson (Fairfax Cir. Ct. Apr. 10, 2020)
A couple is getting divorced. The husband sends the wife a proposed settlement agreement, which he’s signed. The wife sends the husband a set of additional terms. She explains that she’ll sign if he’ll agree to her additional terms. He doesn’t. Two months pass. Again, the wife sends the husband a set of additional terms. Again, she says she’ll sign if he’ll agree to her additional terms. Again, he doesn’t. So she signs his original agreement. He then refuses to recognize it as valid. Can she enforce it against him?
Under traditional doctrine, contracts require offer and acceptance. Acceptance means the unconditional assent to the offer’s terms. That is, the acceptance must mirror the offer exactly. Any variation is a rejection. So, yes, a counteroffer is a rejection. And once rejected, the offer is dead, unless the offeror renews it.
Today, the common law of Virginia continues to follow this traditional “mirror image rule.” Sure, the Virginia Uniform Commercial Code has relaxed the rule for covered commercial transactions. See Va. Code §§ 8.2-206 & 207. But a divorce agreement isn’t one. So the wife’s counteroffer rejected the husband’s offer. And once rejected, it was dead and couldn’t be enforced against him.
Bottom line: You can take back your marriage vows, but not your rejected contract offers.