An Offeror Controls the Terms of the Offer

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Published by Michael Berman at August 1, 2025

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In a family law decision that may impact all time-delimited offers, the Maryland Supreme Court held that the offeror had conditioned acceptance by a date certain, and acceptance came too late. Pattison v. Pattison, __ Md. __, 2025 WL 2057986 (Jul. 23, 2025). The Court wrote: “The issue here is whether a wife’s settlement offer in a divorce case was timely accepted by her husband.”

A cover letter from Ms. Pattison’s attorney stated in part: “This Agreement is delivered to you in settlement of the parties’ outstanding disputes on condition that the Agreement and Note be executed by [Husband] today. I will assume that we will have the final Guaranty signed by [Husband] by close of business on Monday.” [emphasis in original]. It was hand delivered on Friday, September 25, 2020.

The Court wrote: “Husband received the settlement package by email that same day, but signed the documents the following Monday, September 28, 2020.” He later sought to enforce the agreement. His spouse replied that the agreement had not been timely accepted and was a nullity.

The Appellate Court of Maryland reversed the trial court, ruling “that no contract was formed because Husband failed to execute the Agreement by the end of the day on September 25, 2020, as required by Wife’s explicitly stated condition.” The Supreme Court affirmed.

The Supreme Court wrote that: “An offer can come with or without conditions.” Quoting a 92-year-old decision, it wrote: “Since the offeror was at liberty to make no offer, it was free to determine and impose whatever terms it might choose, and among these it might require that its offer be accepted within a designated time in a specific manner. If no acceptance is made in the manner and within the period fixed by the offer, the offer necessarily expires.”

The Pattison Court explained: “This time-tested rule makes sense: Contracts are voluntary undertakings; thus, it’s not the court’s place to pass judgment on the wisdom, necessity, or fairness of the conditions an offeror attaches to her offer. Perhaps Wife had her reasons; perhaps not. Legally, it doesn’t matter.”

The Court wrote: “That Wife imposed the condition in the cover letter and not within the four corners of the Agreement is also irrelevant.”

One of Mr. Pattison’s arguments was that the agreement contained an integration clause. The Pattison Court rejected the argument that “her condition for same-day execution was not part of the Agreement but was rather an extrinsic attempt to change its terms.”

Alternatively, Mr. Pattison argued “that even if the cover letter imposed an acceptance deadline, it was an unreasonable condition.”

The Court wrote: “According to Husband, that’s because the parties’ attorneys communicated on the morning of September 25, and Wife’s counsel knew that nobody would be at Husband’s counsel’s office to accept delivery of the settlement package.”

That argument (and several others, including alleged waiver by the wife) was rejected.

The Court wrote: “An offeror’s freedom to impose any conditions on her offer is not constrained by the offeree’s ability, or lack thereof, to satisfy those conditions.” The Court held that, when Mr. Pattison signed on September 28^th, the offer had expired and “there was no offer for Husband to accept.” Instead, Mr. Pattison’s signed document was a counteroffer, and it was not accepted.

Two Justices dissented:

The Majority cites no case – and I am aware of none – in which a court has set aside a fully executed, integrated agreement based solely on a purported condition precedent found in an extrinsic document. Yet that is precisely the result the Majority reaches…. In effect, the Majority invalidates a fully executed, integrated settlement agreement based entirely on an excluded hearsay document – a remarkably thin evidentiary reed on which to overturn not only a signed contract but also the trial court’s supported factual findings. In my view, the trial court got it right.” The dissent wrote: “Ms. Pattison seeks to transform an after-the-fact cover letter – excluded from evidence as hearsay – into a condition precedent to contract formation.

The dissent stated: “In reversing the trial court’s enforcement of the Settlement Agreement, the Majority has effectively announced a new rule of contract construction: a fully executed, integrated settlement agreement – signed, notarized, and negotiated by counsel – may be set aside if one party can point to any contemporaneous, extrinsic communication arguably conditioning its formation.”

It argued: “The Majority opinion is even more problematic in the family law context, where emotions run high.”

The Majority replied, in part writing that “the dissent seems to think that because Wife and Husband, through their counsel, negotiated and agreed upon the various terms of the Agreement in the days and hours leading up to Wife signing the Agreement, there was no going back—that those terms were final and binding before either party even signed the Agreement. To the contrary, it is clear from the testimony that neither party intended to be bound until the Agreement was finalized and signed, and neither party argued to the contrary in this Court.”

The Majority added:

This case is not about what the Agreement says, it’s about whether the Agreement constituted a binding contract under basic principles of offer and acceptance…. The dissent contends that we should attribute no significance to the cover letter because it was excluded as hearsay. But the dissent overlooks that both parties, in their testimony, testified about and confirmed the cover letter’s contents verbatim, and without objection. So even if the substance of the cover letter constituted hearsay, any objection on that basis was waived, as its contents were in evidence and undisputed. Thus, the existence of the September 25th deadline for the execution of the Agreement did not hinge on anyone’s credibility.

The Majority also asserted that the cover letter was not hearsay. The dissent replied: “The Majority cites no authority permitting it to revive and rely on excluded hearsay at this stage – and I know of none.”

In a somewhat similar, but not identical, context: “Like Cinderella, the attorney in this case tripped on the electronic stairs at midnight, but his client lost more than a glass slipper.” Tom Donlon, Silly Lawyer Tricks XXX (americanbar.org)(Mar. 14, 2023). In Pattison, there is no indication that the attorney tripped. However, timing was important.

For some interesting comparisons, please see: