The Mating Dance: Offers, Acceptances, and the Contracts You Sign by Accident
Courts describe contract formation as a “mating dance,” and on a construction project the dance has strict steps: who offered, who accepted, and whether the two ever actually matched. Miss a step and you may have no contract. Miss a different step and you may have one you never meant to make.
Por M. Colby Lewis, Abogado de Defectos de Construcción, The Law Offices of Colby Lewis, Houston, Texas
This is Post 5 in our Foundations Series, a plain-English walk through the foundations of construction law for building owners. Post 4, ¿Cuándo se convierte una promesa en un contrato?, covered when a promise hardens into a legal commitment. This post covers the mechanics: how offer meets acceptance on a real project, and where the machinery jams.
La versión corta
A contract forms when an offer meets a matching acceptance between authorized people. On a construction project, the roles surprise owners: your invitation for bids is not an offer, the contractor’s bid is the offer, and you accept it, often by a phone call or award letter, well before anyone signs. Acceptance does not require a signature at all: courts routinely enforce unsigned contracts because the parties performed under them, and Texas courts have done exactly that. Meanwhile the “mirror image” rule means a reply that changes the terms is not an acceptance but a counteroffer, which is how sophisticated companies end up trading forms for months and building an entire project with no signed contract governing it. The dance has rules. Owners who don’t know them get dipped.
Who Makes the Offer on a Construction Project?
Not you, usually, and that surprises most owners. When an owner issues an invitation for bids, the law treats it as exactly that: an invitation, a solicitation for offers, not an offer itself. The contractor’s bid is the offer. The contract springs into existence when the owner accepts that offer, and acceptance is ordinarily communicated, by an authorized person, well before the formal written contract is executed. The signing ceremony documents a contract that already exists.
The same fine distinctions run through every layer of the project. A supplier’s “price quotation” may be a firm offer ready for acceptance, or a mere invitation to negotiate, and the difference decides cases. In one Fifth Circuit case, a steel distributor and fabricator had done thirty deals through a quote, purchase order, and acknowledgment routine; when the fabricator stopped delivering, the court had to dissect the paper trail one transaction at a time, finding a binding contract in one purchase order and none in the other, because the second order changed the quantities and arrived after the quote expired. J.D. Fields & Co. v. U.S. Steel Int’l, Inc., 426 F. App’x 271 (5th Cir. 2011). Same parties, same forms, same routine: one contract, one nothing.
And a bid can be drafted to be no offer at all. A subcontractor once escaped its own bid because the bid said, in effect, this is for information only, place no reliance on it, and we are not bound until a written agreement is executed. The court took the disclaimer at face value. Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247 (3d Cir. 2007). Words at the bottom of a one-page bid decided the whole fight.
What Counts as Acceptance, and What Doesn’t?
Acceptance is a “manifestation of assent” to the offer’s terms, made the way the offer invites. Restatement (Second) of Contracts § 50. The classic rule is strict: the acceptance must be the “mirror image” of the offer. Change the terms and you have not accepted anything; you have made a counteroffer and killed the original offer. Stack a few counteroffers on top of each other, each side sending its own preferred form, and you get the notorious “battle of the forms,” projects where the parties are working, billing, and paying without ever having formed the express contract each thinks it has.
The case law shows how easily the dance fails. A contractor and subcontractor exchanged proposals for months, one based on the architects’ association standard subcontract form, the other on the contractors’ association form, and neither ever signed the other’s document; the court found no express contract existed at all. Lindsey Masonry Co. v. Murray & Sons Construction Co., 390 P.3d 56 (Kan. Ct. App. 2017). A federal appeals court reached the same result where a subcontractor marked up the contractor’s agreement and the contractor flatly refused to countersign: many communications, no contract. Skyrise Construction Group, LLC v. Annex Construction, LLC, 956 F.3d 950 (7th Cir. 2020).
Some things that feel like acceptance are not. Listing a subcontractor’s bid in your own bid to the owner does not accept the sub’s offer; courts require an actual communicated acceptance. Even the word “accepted” handwritten on a proposal was held no to form a contract for a $3.2 million hotel, because the evidence showed it was written only to show seriousness about continuing negotiations. Thomas Builders, Inc. v. Patel, 2008 WL 2938054 (Tenn. Ct. App. 2008). And an offer conditioned on execution of a formal written contract means what it says: no signature, no deal, even for parties who negotiated everything else.
But here is the flip side every owner needs, and it is the bigger trap: acceptance by conduct. Courts up to and including Texas courts routinely enforce contracts nobody signed because the parties performed under them. A Houston court of appeals enforced an unsigned contract where the parties’ actions confirmed its acceptance. Chubb Lloyds Insurance Co. of Texas v. Buster & Cogdell Builders, LLC, 668 S.W.3d 145 (Tex. App.—Houston [1st Dist.] 2023). An El Paso court bound an owner to an unsigned written contract because the owner asked the contractor to perform and accepted the benefit of the work. Lerma v. Border Demolition & Environmental, Inc., 459 S.W.3d 695 (Tex. App.—El Paso 2015). A federal court enforced a never-signed subcontract because both sides simply performed its written obligations. Steel, LLC v. Superior Rigging & Erecting Co., 649 F. Supp. 3d 1312 (N.D. Ga. 2022). Silence can even do the job: letting a subcontractor start work after receiving its counteroffer has been held to accept it.
EN ESPAÑOL CLARO, DE COLBY
Here’s the dance in one minute. You put the project out for bids? That’s not an offer, that’s you asking for offers. The contractor’s bid is the offer. And the moment somebody with authority on your side says “you’ve got it,” there can be a contract, before a single signature. Now flip it around, because this is where owners get hurt. You’ve got a draft contract sitting unsigned on your desk, you’re still negotiating two clauses, but the contractor has mobilized and you’re paying his invoices. Guess what a court sees? Two parties performing a contract. The unsigned draft can become the deal, warts and all, because your conduct accepted it. So hear me on this: the dance doesn’t wait for the paperwork. If you’re performing, you’re probably dancing. Make sure it’s to your music.
Does Your Signature Bind You Even If You Didn’t Read It?
Yes, and courts say so in blunt terms. A Massachusetts appeals court recently enforced a signed arbitration agreement against a man who claimed he did not know enough English to understand what he signed. The court’s explanation deserves to be framed: absent fraud, “one who signs a written contract is bound by its terms whether he reads and understands it or not,” a rule that applies even to a person who cannot read, because written contracts exist to preserve the exact terms of obligations, and “there is a solemnity to physically signing a written contract that renders a signature more than just a fancy ornament on a document.” Rivera v. Stetson, 218 N.E.3d 55 (Mass. App. Ct. 2023).
That is the modern law of the wax seal from Post 4, restated for the signature age. The law presumes your signature means you assented to everything above it. “I didn’t read it” is not a defense. “Nobody explained it” is not a defense. On a construction contract, where the two-page agreement often incorporates hundreds of pages of general conditions and specifications, that presumption reaches everything incorporated.
Consideration Fights: The Deals Courts Won’t Rescue, and the Ones That Fail
Post 4 covered how little consideration the law now requires, a peppercorn. Here is the other half: what courts still refuse to do. They refuse to weigh the deal. Since at least 1804, equity has said inadequacy of price will not undo a bargain “unless the inadequacy of price is such as shocks the conscience.” Coles v. Trecothick, 32 Eng. Rep. 592 (Ch. 1804). The Restatement is explicit that once consideration exists, there is no further requirement that the values exchanged be equivalent. Restatement (Second) of Contracts § 79. Bad deal? Your deal.
But formation can still fail on this ground in two ways owners should know. First, illusory promises: a promise that leaves performance entirely optional, “I will if I want to,” is no promise at all and supports no contract. Second, missing consideration for changes: an Arkansas court refused to enforce a signed contract amendment that reduced the contract price, because nothing was given in exchange for the reduction. Moorefield Construction, Inc. v. R.L. Hurst Concrete Construction, Inc., 590 S.W.3d 210 (Ark. Ct. App. 2019). Every change order and amendment is its own little contract, and each one needs its own exchange. A one-way concession, even a signed one, can be legally worthless.
Oral Deals, Public Owners, and the Third-Party Beneficiary Trap
Three final pieces of the formation machine, each with an owner-sized lesson.
Oral contracts are real but fragile. An oral construction contract is enforceable if its essential terms can be proven to reasonable certainty, and courts have enforced them on evidence as simple as an owner paying invoices that matched the claimed understanding. But the statute of frauds bars enforcement of certain oral promises entirely, and vagueness kills the rest. If the terms cannot be reconstructed with certainty, courts will not guess.
Public owners are different. In many jurisdictions, oral promises by public agencies to enter into or modify public contracts are simply unenforceable as a matter of public policy. If you sit on a school board, a city council, or a public authority, that rule protects your entity; if you deal with one, it means nothing counts until it is properly authorized and in writing.
Third-party beneficiary status is granted, not assumed. You did not sign the subcontracts on your project, so you can enforce one only if it clearly manifests an intent to benefit you. Courts police that line hard. A Georgia owner could not invoke a subcontractor’s “life expectancy warranty” because nothing in the subcontract expressly made the owner a beneficiary of it. Southern States Chemical, Inc. v. Tampa Tank & Welding, 353 Ga. App. 286 (Ga. Ct. App. 2019). Other owners have won that status where the subcontract incorporated the prime agreement and the work directly benefited them. The difference is drafting, done years before anyone is angry.
EN ESPAÑOL CLARO, DE COLBY
That warranty case is the one I want you to remember. The owner is standing there holding a leaking tank, the subcontractor gave a “life expectancy warranty” on the very work that failed, and the court says: sorry, that warranty wasn’t made to you. You paid for the project, the warranty covered your property, and you still couldn’t enforce it, because the piece of paper didn’t name you as a beneficiary. Is that harsh? Sure. Is it the law? Absolutely, and it’s the same rule in Texas. So here’s the ask, and it’s small. Before your project starts, have somebody make sure the flow-down language in the subcontracts actually flows to you: warranties, indemnities, insurance. It’s one paragraph. The day the roof fails is a bad day to find out you were an “incidental” beneficiary of your own building.
Qué significa esto para el propietario de un inmueble en Texas
Three rules to keep. First, know your role in the dance: your bid invitation solicits offers, the bid is the offer, and your team’s word of award can form the contract before signing, so control who on your side is authorized to say yes, and make sure everyone knows who that is.
Second, conduct binds. Texas courts enforce unsigned contracts when the parties perform under them, so never let work start, or keep paying for it, under a draft you have not accepted. If terms are still open, say so in writing and keep saying it.
Third, paper the details that decide cases: firm-offer language in bids, authority limits, consideration for every amendment, and third-party beneficiary language in the subcontracts protecting your warranties. None of this is expensive before the dispute. All of it is expensive after, and sorting out exactly what contract exists, if any, is often the first battle in a defect case. That analysis is qué hacemos para los propietarios de edificios en todo Texas, y nuestra FAQ sobre defectos de construcción cubre los primeros pasos prácticos.
Puntos clave
- On a bid project, the owner’s invitation is a solicitation, the contractor’s bid is the offer, and the owner’s communicated award can form the contract before anything is signed.
- The “mirror image” rule means a reply that changes terms is a counteroffer, not an acceptance. Trading standard forms without ever signing one can leave a project with no express contract at all (Lindsey Masonry; Skyrise).
- Unsigned contracts are routinely enforced through acceptance by conduct, including by Texas courts (Chubb Lloyds, Tex. App. 2023; Lerma, Tex. App. 2015). Performing under a draft can adopt it.
- A signature binds you whether or not you read or understood the document; it is “more than just a fancy ornament” (Rivera v. Stetson, Mass. App. Ct. 2023).
- Courts will not rescue a bad bargain, but they will void illusory promises and unsupported amendments; a signed price-reduction amendment failed for lack of consideration (Moorefield, Ark. Ct. App. 2019).
- Owners are not automatically beneficiaries of subcontract warranties; without express third-party beneficiary language, a warranty on your own building may be unenforceable by you (Southern States Chemical, Ga. Ct. App. 2019).
Preguntas frecuentes
Who makes the offer in the construction bidding process?
The contractor. An owner’s invitation for bids is legally a solicitation for offers, not an offer. Each bid is an offer that the owner may accept or reject, and the contract typically forms when an authorized person communicates acceptance to the bidder, often before any formal contract is signed.
Is an unsigned construction contract enforceable?
It can be. Courts regularly enforce unsigned contracts where the parties manifested acceptance by conduct, such as requesting performance, doing the work, and paying for it. Texas appellate courts have enforced unsigned construction contracts on exactly that basis. The absence of a signature is evidence, not a shield.
What is the “battle of the forms”?
It is the exchange of conflicting standard forms, each side “accepting” on its own paperwork with its own terms. Under the common-law mirror image rule, each new form is a counteroffer rather than an acceptance, so the parties may perform an entire project without ever forming the express contract either one intended, leaving a court to reconstruct the deal afterward.
Am I bound by a contract I signed but didn’t read?
Generally yes. Absent fraud or similar misconduct, courts hold signers to contract terms whether or not they read or understood them, a rule courts have applied even to signers who could not read the language of the document. On construction contracts, that includes terms incorporated by reference from other documents.
Can a building owner enforce a subcontractor’s warranty?
Only if the owner is an intended third-party beneficiary of the subcontract. Courts require a clear expression of intent to benefit the owner; without it, the owner is an “incidental” beneficiary with no enforceable rights, even for warranties covering the owner’s own property. Flow-down and beneficiary language should be checked before construction starts.
Próximamente en la Serie Fundamentos
Offer, acceptance, consideration: that is the clean version. But an enormous amount of construction business happens in the gray zone before the clean version, in letters of intent, term sheets, “agreements to agree,” and teaming arrangements. Post 6 goes there: the almost-contract, when a court will enforce a deal whose terms were never finished, when it won’t, and how owners get caught on both sides of that line.
La serie completa está disponible en nuestro Centro de conocimiento.
Sobre el autor
- Colby Lewis es tejano de séptima generación, abogado litigante y fundador de El bufete de Colby Lewis, con oficinas en Houston, San Antonio, Corpus Christi, McAllen y Brownsville. A lo largo de una carrera de más de dos décadas, ha recuperado más de $200 millones para sus clientes, entre los que se incluyen entidades públicas como el condado de Harris, el sistema de Houston Community College y docenas de distritos escolares y ciudades de Texas, en asuntos relacionados con defectos de construcción y seguros. Cuenta con la calificación AV Preeminent de Martindale-Hubbell, ha sido nombrado «Texas Super Lawyer» todos los años desde 2016 hasta 2026, y fue incluido en la lista de los 100 mejores «Super Lawyers» de Houston para 2025 y 2026. Representa a propietarios de edificios, no a constructores, en litigios por defectos de construcción en todo Texas. Conoce a Colby, o llama al (866) 265-2948.
Fuentes y autoridades
- Restatement (Second) of Contracts §§ 17, 22, 50, 77, 79, 208 (1981); U.C.C. § 2-207
- J.D. Fields & Co. v. U.S. Steel Int’l, Inc., 426 F. App’x 271 (5th Cir. 2011)
- Chubb Lloyds Insurance Co. of Texas v. Buster & Cogdell Builders, LLC, 668 S.W.3d 145 (Tex. App.—Houston [1st Dist.] 2023)
- Lerma v. Border Demolition & Environmental, Inc., 459 S.W.3d 695 (Tex. App.—El Paso 2015)
- Rivera v. Stetson, 218 N.E.3d 55 (Mass. App. Ct. 2023)
- Skyrise Construction Group, LLC v. Annex Construction, LLC, 956 F.3d 950 (7th Cir. 2020)
- Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247 (3d Cir. 2007)
- Lindsey Masonry Co. v. Murray & Sons Construction Co., 390 P.3d 56 (Kan. Ct. App. 2017)
- Thomas Builders, Inc. v. Patel, 2008 WL 2938054 (Tenn. Ct. App. 2008)
- Steel, LLC v. Superior Rigging & Erecting Co., 649 F. Supp. 3d 1312 (N.D. Ga. 2022)
- Moorefield Construction, Inc. v. R.L. Hurst Concrete Construction, Inc., 590 S.W.3d 210 (Ark. Ct. App. 2019)
- Southern States Chemical, Inc. v. Tampa Tank & Welding, 353 Ga. App. 286 (Ga. Ct. App. 2019)
- Coles v. Trecothick, 32 Eng. Rep. 592 (Ch. 1804); Farnsworth on Contracts §§ 2.11, 2.13, 3.21, 4.27 (2d ed. 1998)
This article is for general information only and is not legal advice. Reading it does not create an attorney-client relationship. Whether a contract was formed, and on what terms, depends on your facts and current Texas law; consult a licensed Texas attorney about your specific situation. Attorney M. Colby Lewis is responsible for the content of this page. Principal office: Houston, Texas.
