Think before you mail
- By Carl Peckinpaugh
- Apr 03, 2000
Can someone who mails a letter reclaim it from the U.S. Postal Service before
it is delivered? Or will the letter, once placed into the mail, be delivered
to the addressee even if the sender has a change of heart about sending
it? This seemingly trivial question can have a surprising importance in
the law of contracts.
In contracting, there are many circumstances in which one party must provide
formal notice to the other party. The clearest example is in the initial
formation of the contract itself. To accept an offeror's proposal, and thereby
bring the contract into existence, the agency accepting the bids must accept
the offer within a time limit, if any, that the offeror might specify. If
the acceptance is provided late, even by a minute, no contract is formed.
Prior to about 1900, common law held that an acceptance was effective as
of the date it was placed into the U.S. mail. This principle was known as
the "mailbox rule." It was based on the understanding that once a letter
was mailed, it could not be recalled. The understanding meant once you handed
over a document to the Postal Service, it was equivalent to delivering it
directly to the addressee.
In 1913, the Postal Service changed its regulations to allow the person
sending the document to recall it in many situations. Based on the change,
most courts disclaimed the mailbox rule as a general principle. From that
time, acceptance was said to occur when the notice was delivered to the
addressee. See United States v. Dick.
The courts, however, recognized that in some cases the parties might agree
to be bound by the mailbox rule even though the rule did not otherwise apply.
For example, some courts have found that a contractual provision that specifically
allows notice by mail necessarily adopts the mailbox rule, making notice
effective when the document is dropped off at the post office. See, for
example, University Emergency Medicine Foundation v. Rapier Investments
The government has adopted the mailbox rule for contracts it awards. For
some years, the procurement regulations have stated that a federal government
contract comes into existence at the time that the government's acceptance
notice is placed into the U.S. mail, or is otherwise delivered to the offeror.
See, for example, Computer Wholesale Corp. Under this rule, the contract
is formed at the earlier date of either when the notice is mailed or when
it is put into the offeror's possession.
However, even when the mailbox rule applies, it is strictly limited to being
placed in the U.S. mail — not when delivered by an overnight carrier, for
example. In such cases, acceptance will not be effective until the notice
is delivered into the hands of the addressee. See, for example, G.E. Sales
The many cases litigated in this area demonstrate that even today there
is uncertainty as to the application of the mailbox rule. So it is important
for the parties to any contract to specify clearly which notices should
be considered effective upon mailing.
— Peckinpaugh is corporate counsel for DynCorp, Reston, Va.