We all learned pretty early on in law school that for a contract to be formed, there has to be an offer and acceptance. We also were taught that if, in responding to an offer, a party accepted some terms and proposed additional ones, that party was making a counter-offer, was deemed to have rejected the original offer, and no contract was formed. In the real world, it usually is clear whether an offer is being accepted or a counter-offer is being made. Nevertheless, and as the defendant in APB Realty, Inc. v. Georgia-Pacific LLC recently learned, a lack of precision in responding to an offer can lead to confusion as to whether or not a contract has been formed.

In APB Realty, Georgia-Pacific was offering 88 rails cares for sale, “where is, as is.” APB was interested in buying those rails cars, and it made the following offer to Georgia-Pacific’s broker:

     Total for all 88 x Log Stake Railcars $1,636,000 (Including 16% Buyer’s Premium).

Shortly thereafter, the broker responded as follows:

Here are the two options that [Georgia-Pacific] has brought back for us to close the deal on.

Option 1, basically states that for $61K, you

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