POSNER, Circuit Judge.

To be board-certified by the American Board of Psychiatry and Neurology, a physician must have a year of internship after graduation from medical school and three years of residency, also postgraduate. At the time relevant to this case, the Board allowed the internship to be done abroad. Dr. Patel wrote the Board requesting credit for his Indian internship and attaching to the letter documents showing that it had been completed by May 1979 and that he had not received his medical degree until, December. Nevertheless the Board wrote him back that his Indian internship would satisfy the internship requirement for certification by the Board. He later obtained a residency in the United States, in the third year of which he wrote the Board for confirmation that his Indian internship indeed qualified. The Board replied in the negative, so Patel was compelled, after completing his three years of residency, to do a year of internship, after which the Board certified him.

He brought this diversity suit against the Board, charging breach of contract and promissory estoppel, and seeking damages presumably based on the earnings he lost as a result of the postponement of his certification. The judge granted the Board summary judgment on the contract count but allowed the promissory estoppel count to go to trial. After a bench trial, the judge gave judgment for the Board on the ground that Patel’s reliance on the Board’s *1314initial letter had been unreasonable. Patel appeals only from the summary judgment on the contract count.

The judge held that any contract to waive the requirement of a post-graduate internship was unenforceable because not supported by consideration. He was right. An enforceable contract, in Anglo-American common law, is an exchange. American Law Institute, Restatement (Second) of Contracts § 17 (1979); 1 E. Allan Farnsworth, Farnsworth on Contracts §§ 2.2-2.4 (1990). There was no exchange here. Patel’s lawyer is misled by the (legal) dictionary definition of consideration as benefit to the promisor (the Board) or detriment to the promisee (Patel), 3 Samuel Williston, A Treatise on the Law of Contracts § 7:5, at pp. 54-55 (4th ed., Richard A. Lord ed. 1992) (for criticism of the definition, see 1 Arthur C. Corbin, Contracts §§ 121-124 (1963)), as if Patel could have made the Board’s assurance that he had satisfied the internship requirement binding by beating his head against the wall. He incurred a detriment in the sense of a cost by (as he argues) submitting documentation in support of his application for credit for his Indian internship. But the detriment was not part of a bargain. It's not as if the Board had told Patel that if he sat for some exam or gave up his Indian citizenship the Board would credit his pregraduation internship. Unbargained detriments are relevant not to contract but to estoppel.

Patel does not strengthen his case by arguing that the Board’s letter stating that his Indian internship would be credited was the offer of a unilateral contract that he accepted by completing a three-year post-graduate residency in the United States. The only difference between a bilateral and a unilateral contract is that in the second the offeror waives formal acceptance; it is enough that the offeree performs as specified in the offer; performance and acceptance merge. But the performance must satisfy the requirement of consideration, since there is nothing else (i.e., the offeree’s promise — he makes no promise) that might do so. The performance could confer a palpable benefit on the offeror — as where the offer is of a reward for returning the offeror’s lost Siamese cat. Or it could impose a detriment on the offeree, as where the specified performance is to refrain from smoking. It is true that in every contract case, if we are right that contract is the domain of exchange, the promisee’s detriment must really be a form of benefit — it is something the offeror wants and is willing to pay for. 3 Williston, supra, § 7:5, at p. 61. But sometimes the element of benefit is so oblique that it seems more natural to focus on the burden placed on the offeree, as in the smoking case. It might be better to speak of direct and indirect benefit, to make clear that the offeree is obligated at the least to do something that the offeror wants him to do even if the requested performance will not confer a palpable, an obvious benefit on the offeror.

But in the case at hand, when the contract is recast as a unilateral contract something altogether fundamental in such a contract is seen to be missing: requested performance. 1 Farnsworth, supra, § 2.9, at p. 61. When the Board told Dr. Patel that his Indian internship satisfied the Board’s requirement of an internship, it didn’t ask him to do anything, or for that matter to refrain from anything. Id. It told him that he didn’t have to do (or for that matter not do) anything. It may have misled him, but a misleading statement is not ipso facto the offer of a unilateral contract.

Affirmed.

AYRES, Judge.

This is an action for damages allegedly sustained by plaintiff as the result of the breach by the defendants of a written contract for the re-roofing of defendants’ residence. Defendants denied that their written proposal or offer was ever accepted by plaintiff in the manner stipulated therein for its acceptance, and hence contended no contract was ever entered into. The trial court sustained defendants’ defense and rejected plaintiff’s demands and dismissed its suit at its costs. From the judgment thus rendered and signed, plaintiff appealed.

Defendants executed and signed an instrument June 10, 1953, for the purpose of obtaining the services of plaintiff in re-roofing their residence situated in Webster Parish, Louisiana. The document set out in detail the work to be done and the price therefor to be paid in monthly installments. This instrument was likewise signed by plaintiff’s sale representative, who, however, was without authority to accept the contract for and on behalf of the plaintiff. This alleged contract contained these provisions :

“This agreement shall become binding only upon written acceptance hereof, by the principal or authorized officer of the Contractor, or upon commencing performance of the work. This contract is Not Subject to Cancellation. It is understood and agreed that this contract is payable at office of Ever-Tite Roofing Corporation, 5203 Telephone, Houston, Texas. It is understood and agreed that this Contract provides for attorney’s fees and in no case less than ten per cent attorney’s fees in the event same is placed in the hands of an attorney for collect*451ing- or collected through any court, and further provides for accelerated maturity for failure to pay any installment of principal or interest thereon when due.

“This written agreement is the only and entire contract covering the subject matter hereof and no other representations have been made unto Owner except these herein contained. No guarantee on repair work, partial roof jobs, or paint jobs.” (Emphasis supplied.)

Inasmuch as this work was to be performed entirely on credit, it was necessary for plaintiff to obtain credit reports and approval from the lending institution which was to finance said contract. With this procedure defendants were more or less familiar and knew their credit' rating would have to be checked and a report made. On receipt of the proposed contract in plaintiff’s office on the day following its execution, plaintiff requested a credit report, which was made after investigation and which was received in due course and submitted by plaintiff to the lending agency. Additional information was requested by this institution, which was likewise in due course transmitted to the institution, which then gave its approval.

The day immediately following this approval, which was either June 18 or 19, 1953, plaintiff engaged its workmen and two trucks, loaded the trucks with the necessary roofing materials and proceeded from Shreveport to defendants’ residence for the purpose of doing the work and performing the services allegedly contracted for the defendants. Upon their arrival at defendants’ residence, the workmen found others in the performance of the work which plaintiff had contracted to do. Defendants notified plaintiff’s workmen that the work had been contracted to other parties two days before and forbade them to do the work.

Formal acceptance of the contract was not made under the signature and approval of an agent of plaintiff. It was, however, the intention of plaintiff to accept the contract by commencing the work, which was one of the ways provided for in the instrument for its acceptance, as will be shown by reference to the extract from the contract quoted hereinabove. Prior to this time, however, defendants had determined on a course of abrogating the agreement and engaged other workmen without notice thereof to plaintiff.

The basis of the judgment appealed was that defendants had timely notified plaintiff before “commencing performance of work”. The trial court held that notice to plaintiff’s workmen upon their arrival with the materials that defendants did not desire them to commence the actual work was sufficient and timely to signify their intention to withdraw from the contract. With this conclusion we find ourselves unable to agree.

Defendants’ attempt to justify their delay in thus notifying plaintiff for the reason they did not know where or how to contact plaintiff is without merit. The contract itself, a copy of which was left with them,- conspicuously displayed plaintiff’s name, address and telephone number. Be that as it may, defendants at no time, from June 10, 1953, until plaintiff’s workmen arrived for the purpose of commencing the work, notified or'attempted to notify plaintiff of their intention to abrogate, terminate or cancel the contract.

Defendants evidently knew this work was to . be processed through plaintiff’s Shreveport office. The record discloses no unreasonable delay on plaintiff’s part in receiving, processing or accepting the contract or in commencing the work contracted to be done. No time limit was specified in the contract within which it was to be accepted or within which the work was to be begun. It was nevertheless understood between the parties that some delay would ensue before the acceptance of the contract and the commencement of the work, due to the necessity of compliance with the requirements relative to financing the job *452through a lending agency. The evidence as referred to hereinabove shows that plaintiff proceeded with due diligence.

The general rule of law is that an offer proposed may be withdrawn before its acceptance and that no obligation is incurred thereby. This is, however, not without exceptions. For instance, Restatement of the Law of Contracts stated:

“(1) The power to create a contract by acceptance of an offer terminates at the time specified in the offer, or, if no time is specified, at the end of a reasonable time.

“What is a reasonable time is a question of fact depending on the nature of the contract proposed, the usages of business and other circumstances of the case which the offeree at the time of his acceptance either knows or has reason to know.”

These principles are recognized in the Civil Code. LSA-C.C. Art. 1800 provides that an offer is incomplete as a contract until its acceptance and that before its acceptance the offer may be withdrawn. However, this general rule is modified by the provisions of LSA-C.C. Arts. 1801, 1802, 1804 and 1809, which read as follows:

“Art. 1801. The party proposing shall be presumed to continue in the intention, which his proposal expressed, if, on receiving the unqualified assent of him to whom the proposition is made, he do not signify the change of his intention.

“Art. 1802. He is bound by his proposition, and the signification of his dissent will be of no avail, if the -proposition he made in terms, which evince a design to give the other party the right of concluding the contract by his assent; mid if that assent he given within such time as the situation of the parties and the nature of the contract shall prove that it was the intention of the proposer to allow. * * *

“Art. 1804. The acceptance needs (need) not be made by the same act, or in point of time, immediately after the proposition; if made at any time before the person who offers or promises has changed his mind, or may reasonably be presumed to have done so, it is sufficient. * * *

“Art. 1809. The obligation of a contract not being complete, until the acceptance, or in cases where it is implied by law, until the circumstances, which raise such implication, are known to the party proposing; he may therefore revoke his offer or proposition before such acceptance, but not without allowing such reasonable time as from the terms of his offer he has given, or from the circumstances of the case he may be supposed to have intended to give to the party, to communicate his determination.” (Emphasis supplied.)

Therefore, since the contract did not specify the time within which it was to be accepted or within which the work was to have been commenced, a reasonable time must be allowed therefor in accordance with the facts and circumstances and the evident intention of the parties. A reasonable time is contemplated where no time is expressed. What is a reasonable time depends more or less upon the circumstances surrounding each particular case. The delays to process defendants’ application were not unusual. The contract was accepted by plaintiff by the commencement of the performance of the work contracted to be done. This commencment began with the loading of the trucks with the necessary materials in Shreveport and transporting such materials and the workmen to defendants’ residence. Actual commencement or performance of the work therefore began before any notice of dissent by defendants was given plaintiff. The proposition and its acceptance thus became a completed contract.

By their aforesaid acts defendants breached the contract. They employed *453others to do the work contracted to be done by plaintiff and forbade plaintiff’s workmen to engage upon that undertaking. By this breach defendants are legally bound to respond to plaintiff in damages. LSA-C.C. Art. 1930 provides:

“The obligations of contract (contracts) extending to whatsoever is incident to such contracts, the party who violates them, is liable, as one of the incidents of his obligations, to the payment of the damages, which the other party has sustained by his default.”

The same authority in Art. 1934 provides the measure of damages for the breach of a contract. This article, in part, states:

“Where the object of the contract is anything but the payment of money, the damages due to the creditor for its breach are the amount of the loss he has sustained, and the profit of which he has been deprived, * * *

Plaintiff expended the sum of $85.37 in loading the trucks in Shreveport with materials and in transporting them to the site of defendants’ residence in Webster Parish and in unloading them on their return, and for wages for the workmen for the time consumed. Plaintiff’s Shreveport manager testified that the expected profit on this job was $226. None of this evidence is controverted or contradicted in any manner.

True, as plaintiff alleges, the contract provides for attorney’s fees where an attorney is employed to collect under the contract, but this is not ah action on the contract or to collect under the contract but is an action for damages for a breach of the contract. The contract in that respect is silent with reference to attorney’s fees. In the absence of an agreement for the payment of attorney’s fees or of some law authorizing the same, such fees are not allowed.

For the reasons assigned, the judgment appealed is annulled, avoided, reversed and set aside and there is now judgment in favor of plaintiff, Ever-Tite Roofing Corporation, against the defendants, G. T. Green and Mrs. Jessie Fay Green, for the full sum of $311.37, with 5 per cent per annum interest thereon from judicial demand until paid, and for all costs.

Reversed and rendered.

*372THE COURT.

Plaintiffs appeal from a judgment refusing to grant specific performance of an alleged contract to make a will. The facts are not in dispute and are as follows:

The plaintiff Caro M. Davis was the niece of Blanche Whitehead who was married to Rupert Whitehead. Prior to her marriage in 1913 to her coplaintiff Prank M. Davis, Caro lived for a considerable time at the home of the Whiteheads, in Piedmont, California. The Whiteheads were childless and extremely fond of Caro. The record is replete with uncontradicted testimony of the close and loving .relationship that existed between Caro and her aunt and uncle. During the period that Caro lived with the Whiteheads she was treated as and often referred to by the Whiteheads as their daughter. In 1913, when Caro was married to Prank Davis the marriage was arranged at the Whitehead home and a reception held there. After the marriage Mr. and Mrs. Davis went to Mr. Davis’ home in Canada, where they have resided ever since. During the period 1913 to 1931 Caro made many visits to the Whiteheads, several of them being of long duration. The Whiteheads visited Mr. and Mrs. Davis in Canada on several occasions. After the marriage and continuing down to 1931 the closest and most friendly relationship at all times existed between these two families. They corresponded frequently, the record being replete with letters showing the loving relationship.

By the year 1930 Mrs. Whitehead had become seriously ill. She had suffered several strokes and her mind was failing. Early in 1931 Mr. Whitehead had her removed to a private hospital. The doctors in attendance had informed him that she might die at any time or she might linger for many months. Mr. Whitehead had suffered severe financial reverses. He had had several sieges of sickness and was in poor health. The record shows that during the early part of 1931 he was desperately in need of assistance with his wife, and in his business affairs, and that he did not trust his friends in Piedmont. On March 18, 1931, he wrote to Mrs. Davis telling her of Mrs. Whitehead’s condition and added that Mrs. Whitehead was very wistful. “Today I endeavored to find out what she wanted. I finally -asked her if she wanted to see you. She burst out crying and we had great difficulty in getting her to stop. *373Evidently, that is what is on her mind. It is a very difficult matter to decide. If you come it will mean that you will have to leave again, and then things may be serious. I am going to see the doctor, and get his candid opinion and will then write you again. . . . Since writing the above, I have seen the doctor, and he thinks it will help considerably if you come.” Shortly thereafter, Mr. Whitehead wrote to Caro Davis further explaining the physical condition of Mrs. Whitehead and himself. On March 24, 1931, Mr. Davis, at the request of his wife, telegraphed to Mr. Whitehead as follows: “Tour letter received. Sorry to hear Blanche not so well. Hope you are feeling better yourself. If you wish Caro' to go to you can arrange for her to leave in about two weeks. Please wire me if you think it advisable for her to go.” On March 30, 1931, Mr. Whitehead wrote a long letter to Mr. Davis, in which he explained in detail the condition of Mrs. Whitehead’s health and also referred to his own health. He pointed out that he had lost a considerable portion of his cash assets but still owned considerable realty, that he needed someone to help him with his wife and some friend he could trust to help him with his business affairs and suggested that perhaps Mr. Davis might come to California. He then pointed out that all his property was community property; that under his will all the property was to go to Mrs. Whitehead; that he believed that under Mrs. Whitehead’s will practically everything was to go to Caro. Mr. Whitehead again wrote to Mr. Davis under date of April 9, 1931, pointing out how badly he needed someone he could trust to assist him, and giving it as his belief that if properly handled he could still save about $150,000. He then stated: “Having you [Mr. DavisJ here to depend on and to help. me regain my mind and courage would be’ a big thing. ’ ’ Three days later, on April 12, 1931, Mr. Whitehead again wrote, addressing his letter to “Dear Frank and Caro”, and in this letter made the definite offer, which offer it is claimed was accepted and is the basis of this action. In this letter he first pointed out that Blanche, his wife, was in a private hospital and that “she cannot last much longer . . . my affairs are not as bad as I supposed at first. Cutting everything down I figure 150,000 can be saved from the wreck.” He then enumerated the values placed upon his various properties and then *374continued “my trouble was caused by my friends “taking advantage of my illness and my position to skin me

“Now if Frank could come out here and be with me, and look after my affairs, we could easily save the balance I mentioned, provided I dont get into another panic and do some more foolish things.

“The next attack will be my end, I am 65 and my health has been bad for years, so, the Drs. dont give me much longer to live. So if you can come, Caro will inherit everything and you will make our lives happier and see Blanche is provided for to the end

“My eyesight has gone back on me, I cant read only for a few lines at a time. I am at the house alone with Stanley [the chauffeur] who does everything for me and is a fine fellow. Now, what I want is some one who will take charge of my affairs and see I dont lose any more. Frank can do it, if he will and cut out the booze.

“Will you let me hear from you as soon as possible, I know it will be a sacrifice but times are still bad and likely to be, so by settling down you can help me and Blanche and gain in the end. If I had you here my mind would get better and my courage return, and we could work things out.”

This letter was received by Mr. Davis at his office in Windsor, Canada, about 9:30 A. M. April 14, 1931. After reading the letter to Mrs. Davis over the telephone, and after getting her belief that they must go to California, Mr. Davis immediately wrote Mr. Whitehead a letter, which, after reading it to his wife, he sent by air mail. This letter was lost, but there is no doubt that it was sent by Davis and received by Whitehead, in fact the trial court expressly so found. Mr. Davis testified in substance as to the contents of this letter. After acknowledging receipt of the letter of April 12, 1931, Mr. Davis unequivocally stated that he and Mrs. Davis accepted the proposition of Mr. Whitehead and both would leave Windsor to go to him on April 25th. This letter of acceptance also contained the information that the reason they could not leave prior to April 25th was that Mr. Davis had to appear in court on April 22d as one of the executors of his mother’s estate. The testimony is uncontradicted and ample to support the trial court’s finding that this letter was sent *375by Davis and received by Whitehead. In fact under date of April 15, 1931, Mr. Whitehead again wrote to Mr. Davis and stated “Your letter by air mail received this a. m. Now, I am wondering if I have put you to unnecessary trouble and expense, if you are making any money dont leave it, as things are bad here. ... You know your business and I dont and I am half crazy in the bargain, but I dont want to hurt you or Caro

“Then on the other hand if I could get some one to trust and keep me straight I can save a good deal, about what I told you in my former letter.”

This letter was received by Mr. Davis on April 17, 1931, and the same day Mr. Davis telegraphed to Mr. Whitehead “Cheer up—we will soon be there, we will wire you from the train.”

Between April 14, 1931, the date the letter of acceptance was sent by Mr. Davis, and April 22d, Mr. Davis was engaged in closing out his business affairs, and Mrs. Davis in closing up their home and in making other arrangements to leave. On April 22, 1931, Mr. Whitehead committed suicide. Mr. and Mrs. Davis were immediately notified and they at once came to California. From almost the moment of her arrival Mrs. Davis devoted herself to the care and comfort of her aunt, and gave her aunt constant attention and care until Mrs. Whitehead’s death on May 30, 1931. On this point the trial court found: “from the time of their arrival in Piedmont, Caro M. Davis administered in every way to the comforts of Blanche Whitehead and saw that she was cared for and provided for down to the time of the death of Blanche Whitehead on May 30, 1931; during said time Caro M. Davis nursed Blanche Whitehead, cared for her and administered to her wants as a natural daughter would have done toward and for her mother”.

This finding is supported by uncontradicted evidence and in fact is conceded by respondents to be correct. In fact the record shows that after their arrival in California Mr. and Mrs. Davis fully performed their side of the agreement.

After the death of Mrs. Whitehéad, for the first time it was discovered that the information contained in Mr. Whitehead ’s letter of March 30, 1931, in reference to the contents of his and Mrs. Whitehead’s wills was incorrect. By a duly witnessed will dated February 28, 1931, Mr. White*376head, after making several specific bequests, had bequeathed all of the balance of his estate to his wife for life, and upon her death to respondents Geoff Doubble and Rupert Ross Whitehead, his nephews. Neither appellant was mentioned in his will. It was also discovered that Mrs. Whitehead by a will dated December 17, 1927, had devised all of her estate to her husband. The evidence is clear and uncontradicted that the relationship existing between Whitehead and his two nephews, respondents herein, was not nearly as close and confidential as that existing between Whitehead and appellants.

After the discovery of the manner in which the property had been devised was made, this action was commenced upon the theory that Rupert Whitehead had assumed a contractual obligation to make a will whereby “Caro Davis would inherit everything”; that he had failed to do so; that plaintiffs had fully performed their part of the contract; that damages being insufficient, quasi specific performance should be granted in order to remedy the alleged wrong, upon the equitable principle that equity regards that done which ought to have been done. The requested relief is that the beneficiaries under the will of Rupert Whitehead, respondents herein, be declared to be involuntary trustees for plaintiffs of Whitehead’s estate.

It should also be added that the evidence shows that as a result of Frank Davis leaving his business in Canada he forfeited not only all insurance business he might have written if he had remained, but also forfeited all renewal commissions earned on past business.. According to his testimony this loss was over $8,000.

The trial court found that the relationship between Mr. and Mrs. Davis and the Whiteheads was substantially as above recounted and that the other facts above stated were true; that prior to April 12, 1931, Rupert Whitehead had suffered business reverses and was depressed in mind and ill in body; that his wife was very ill; that because of his mental condition he “was unable to properly care for or look after his property or affairs ’ ’; that on April 12, 1931, Rupert Whitehead in writing made an offer to plaintiffs that, if within a reasonable time thereafter plaintiffs would leave and abandon their said home in Windsor, and if Frank M. Davis would abandon or dispose of his said *377business, and if both the plaintiffs would come to Piedmont in the said county of Alameda where Rupert "Whitehead then resided and thereafter reside at said place and be with or near him, and, if Prank M. Davis would thereupon and thereafter look after the business and affairs of said Rupert Whitehead until his condition improved to such an extent as to permit him so to do, and if the plaintiffs would look after and administer to the comforts of Blanche Whitehead and see that she was properly cared for until the time of her death, that, in consideration thereof, Caro M. Davis would inherit everything that Rupert Whitehead possessed at the time of his death and that by last will and testament Rupert Whitehead would devise and bequeath to Caro M. Davis all property and estate owned by him at the time of his death, other than the property constituting the community interest of Blanche Whitehead; thatshortiy prior to April 12, 1931, Rupert Whitehead informed plaintiffs of the supposed terms of his will and the will of Mrs. Whitehead. The court then finds that the offer of April 12th was not accepted. As already stated, the court found that plaintiffs sent a letter to Rupert Whitehead on April 14th purporting to accept the offer of April 12th, and also found that this letter was received by the Whiteheads, but finds that in fact such letter was not a legal acceptance. The court also found that the offer of April 12th was “fair and just and reasonable, and the consideration therefor, namely, the performance by plaintiffs of the terms and conditions thereof, if the same had been performed, would have been an adequate consideration for said offer and for the agreement that would have resulted from such performance; said offer was not, and said agreement would not have been, either harsh or oppressive or unjust to the heirs at law, or devisees, or legatees, of Rupert Whitehead, or to each or any of them, or otherwise”.

The court also found that plaintiffs did not know that the statements made by Whitehead in reference to the wills were not correct until after Mrs. Whitehead’s death, that after plaintiffs arrived in Piedmont they cared for Mrs. Whitehead until her death and “Blanche Whitehead was greatly comforted by the presence, companionship and association of Caro M. Davis, and by her administering to her wants”.

*378The theory of the trial court and of respondents on this appeal is that the letter of April 12th was- an offer to contract, but that such offer could only be accepted by performance and could not be accepted by a promise to perform, and that said offer was revoked by the death of Mr. Whitehead before performance. In other words, it is contended that the offer was an offer to enter into a unilateral contract, and that the purported acceptance of April 14th was of no legal effect.

The distinction between unilateral and bilateral contracts is well settled in the law. It is well stated in section 12 of the American Institute’s Restatement of the Law of Contracts as follows:

“A unilateral contract is one in which no promisor receives a promise as consideration for his promise. A bilateral contract is one in which there are mutual promises between two parties to the contract; each party being both a promisor and a promisee.”

This definition is in accord with the law of California. (Christman v. Southern Cal. Edison Co., 83 Cal. App. 249 [256 Pac. 618].)

In the ease of unilateral contracts no notice of acceptance by performance is required. Section 1584 of the Civil Code provides, “Performance of the conditions of a proposal, ... is an acceptance of the proposal.” (See Cuthill v. Peabody, 19 Cal. App. 304 [125 Pac. 926]; Los Angeles Traction Co. v. Wilshire, 135 Cal. 654 [67 Pac. 1086].)

Although the legal distinction between unilateral and bilateral contracts is thus well settled, the difficulty in any particular case is to determine whether the particular offer is one to enter into a bilateral or unilateral contract. Some cases are quite clear cut. Thus an offer to sell which is accepted is clearly a bilateral contract, while an offer of a reward is a clear-cut offer of a unilateral contract which cannot be accepted by a promise to perform, but only by performance. (Berthiaume v. Doe, 22 Cal. App. 78 [133 Pac. 515].) Between these two' extremes is a vague field where the particular contract may be unilateral or bilateral depending upon the intent of the offerer and the facts and circumstances of each case. The offer to contract involved in this case falls within this *379category. By the provisions of the Restatement of the Law of Contracts it is expressly provided that there is a presumption that the offer is to enter into a bilateral contract. Section 31 provides:

“In case of doubt it is presumed that an offer invites the formation of a bilateral contract by an acceptance amounting in effect to a promise by the offeree to perform what the offer requests, rather than the formation of one or more unilateral contracts by actual performance on the part of the offeree.”

Professor Williston in his Treatise on Contracts, volume 1, section 60, also takes the position that a presumption in favor of bilateral contracts exists.

In the comment following section 31 of the Restatement the reason for such presumption is stated as follows:

“It is not always easy to determine whether an offerer requests an act or a promise to do the act. As a bilateral contract immediately and fully protects both parties, the interpretation is favored that a bilateral contract is proposed.”

While the California cases have never expressly held that a presumption in favor of bilateral contracts exists, the cases clearly indicate a tendency to treat offers as offers of bilateral rather than of unilateral contracts. (Roth v. Moeller, 185 Cal. 415 [197 Pac. 62]; Boehm v. Spreckels, 183 Cal. 239 [191 Pac. 5]; see, also, Wood v. Lucy, Lady Duff-Gordon, 222 N. Y. 88 [118 N. E. 214].)

Keeping these principles in mind we are of the opinion that the offer of April 12th was an offer to enter into a bilateral as distinguished from a unilateral contract. Respondents argue that Mr. Whitehead had the right as offerer to designate his offer as either unilateral or bilateral. That is undoubtedly the law. It is then argued that from all the facts and circumstances it must be implied that what Whitehead wanted was performance and not a mere promise to perform. We think this is a non sequitur, in fact the surrounding circumstances lead to just the opposite conclusion. These parties were not dealing at arm’s length. Not only were they related, but a very close and intimate friendship existed between them. The record indisputably demonstrates that Mr. Whitehead had confidence in Mr. and Mrs. Davis, in fact that he had lost all confidence in *380everyone else. The record amply shows that by an accumulation of occurrences Mr. Whitehead had become desperate, and that what he wanted was the promise of appellants that he could look to them for assistance. He knew from his past relationship with appellants that if they gave their promise to perform he could rely upon them. The correspondence between them indicates how desperately he desired this assurance. Under these circumstances he wrote his offer of April 12th, above quoted, in which he stated, after disclosing his desperate mental and phjosical condition, and after setting forth the terms of his offer: “Will you let me hear from you as soon as possible—I know it will be a sacrifice but times are still bad and likely to be, so by settling down you can help me and Blanche and gain in the end.” By thus specifically requesting an immediate reply Whitehead expressly indicated the nature of the acceptance desired by him—namely, appellants’ promise that they would come to California and do the things requested by him. This promise was immediately sent by appellants upon receipt of the offer, and was received by Whitehead. It is elementary that when an offer has indicated the mode and means of acceptance, an acceptance in accordance with that mode or means is binding on the offerer.

Another factor which indicates that Whitehead must have contemplated a bilateral rather than a unilateral contract, is that the contract required Mr. and Mrs. Davis to perform services until the death of both Mr. and Mrs. Whitehead. It is obvious that if Mr. Whitehead died first some of these services were to be performed after his death, so that he would have to rely on the promise of appellants to perform these services. It is also of some evidentiary force that Whitehead received the letter of acceptance and acquiesced in that means of acceptance.

Shaw v. King, 63 Cal. App. 18 [218 Pac. 50], relied on by respondents is clearly not in point. In that case there was no written acceptance, nor was there an acceptance by partial or total performance.

For the foregoing reasons we are of the opinion that the offer of April 12, 1931, was an offer to enter into a bilateral contract which was accepted by the letter of April 14, 1931. Subsequently appellants fully performed *381their part of the contract. Under such circumstances it is well settled that damages are insufficient and specific performance will be granted. (Wolf v. Donahue, 206 Cal. 213 [273 Pac. 547].) Since the consideration has been fully rendered by appellants the question as to mutuality of remedy becomes of no importance. (6 Cal. Jur., sec. 140.)

Respondents also contend the complaint definitely binds appellants to the theory of a unilateral contract. This contention is without merit. The complaint expressly alleges the parties entered into a contract. It is true that the complaint also alleged that the contract became effective by performance. However, this is an action in equity. Respondents were not misiva. No objection was made to the testimony offered to show the acceptance of April 14th. A fair reading of the record clearly indicates the case was tried by the parties ojL the theory that the sole question was whether there was a contract—unilateral or bilateral.

For the foregoing reasons the judgment appealed from is reversed.

Rehearing denied.

CUDAHY, Circuit Judge.

Appellant Meadors appeals an order of the district court granting the Small Business Administration (the “SBA”) summary judgment in its action to collect from appellant as guarantor on a loan. The district court found that the Equal Credit Opportunity Act did not protect Meadors from liability; that she had waived certain protections by signing the guaranty; and that no independent consideration was necessary for her signature as a guarantor. On appeal she raises these defenses again, and also argues that, should she be liable, the district judge erred in calculating the interest due on the note. We reverse and remand.

I.

In January, 1977, M.J.D., Inc. (“MJD”) applied to the Bargersville State Bank (the “Bank”) for a loan to pay off debts and to provide for additional working capital for a lumber company MJD owned in Bargers-ville, Indiana. The Bank’s board of directors approved the loan subject to a guaranty by the SBA. In April, 1977, the SBA approved the request for a 56% guaranty of the $281,000 loan, but required the principals Melton Meadors, Jay Judd and Harold Ducote and Ducote’s wife Marie to sign a guaranty on SBA Form 148. In the January application, listed on page four as possible guarantors had been: “Melton E. Meadors — a single person, Jay A. Judd & Wife, Harold A. Ducote, Jr., & Wife.” After considering the loan application and attached balance sheets, the SBA chose to have Meadors, Judd, Ducote and Ducote’s wife sign the required guaranty.

On April 2, 1977, Melton Meadors and Betty, appellant here, were married. At the April 19 closing the three principals and their wives were all present. Although the SBA had provided places on its Form 148 for the signatures only of Meadors, Judd, Ducote, & Ducote’s wife, and although no one from the SBA was present to request additional signatures, all six — the three principals and their wives — signed the guaranty form. Neither the SBA nor the Bank required Betty to sign any document as a prerequisite for disbursing loan proceeds. These facts are not disputed by either side.

MJD defaulted on its loan, and the Bank asked the SBA to take over the guaranteed portion of the loan. MJD turned over the collateral securing the loan to the SBA in *592July, 1980 and it was later sold. An action was subsequently instituted in district court to collect the deficiency from the guarantors, including Betty Meadors. Appellant raised several defenses, including lack of consideration and impairment of collateral. In November, 1983 appellee SBA filed a motion for summary judgment which was granted by the district court on February 2, 1984. It is from that grant of summary judgment that Betty Meadors appeals.

Appellant argues before this court that the Equal Credit Opportunity Act, 15 U.S.C. § 1691 et seq., protects her from liability; that there was not sufficient consideration for her signature on the guaranty; that the SBA willfully impaired the collateral; that she did not receive statutory notification of the sale of the collateral, and that the sale was not conducted in a commercially reasonable manner; and finally that the district court erred with respect to the amount of interest due, should she be liable on the guaranty.

There is apparently some confusion about whether Indiana law or federal law should govern in this case. In the district court appellant appealed to Indiana common law; the government has apparently relied on federal cases. Without raising the issue, the district court applied Indiana law.

Federal law governs questions involving the rights of the United States arising under nationwide federal programs. United States v. Kimbell Foods, Inc., 440 U.S. 715, 726, 99 S.Ct. 1448, 1457, 59 L.Ed.2d 711 (1979). “In the absence of an applicable Act of Congress it is for the federal courts to fashion the governing rule of law according to their own standards.” Clearfield Trust Co. v. United States, 318 U.S. 363, 367, 63 S.Ct. 573, 575, 87 L.Ed. 838 (1943). Nevertheless, federal courts may turn to state law in attempting to give content to the federal rule in question. United States v. Kimbell Foods, Inc., 440 U.S. at 727, 99 S.Ct. at 1457. Thus, on certain issues, such as impairment of collateral and the right to notice, where “the state law on which private creditors base their daily commercial transactions is derived from a uniform statute [the U.C.C.],” and there is therefore no conflict with the federal interest in uniformity, appeal to state law is appropriate. United States v. Kukowski, 735 F.2d 1057, 1058 (8th Cir.1984). On those issues, then, we look to the Uniform Commercial Code, the Indiana statute based on it, and Indiana common law.

II.

Summary judgment is appropriate if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.Pro. 56(c). In the case before us the parties do not disagree about the facts, and our only role is to determine whether, on the facts as agreed, the district court was right as a matter of law.

A. The Interest.

For reasons not apparent from the record, the district court granted the government’s motion for summary judgment as to Melton Meadors, Jay Judd and Helen Judd on August 8, 1983, but as to Betty Meadors not until February 2, 1984. In its February 2 order the court assessed against Betty Meadors, jointly and severally with the other defendants, the principal sum of $152,720.04, together with interest on the note of $28,213.22 accruing before the August 8 entry of judgment against Melton Meadors and the Judds and “interest accruing thereafter at the legal rate.”

The procedure for determining the interest due on judgments is set out in 28 U.S.C. § 1961:

Interest shall be allowed on any money judgment in a civil case recovered in a district court____ Such interest shall be calculated from the date of the entry of the judgment____

*593Appellant argues that under the statute interest on a note accrues as provided for in the note until judgment is actually entered, and after judgment at a rate set by state law, and that since judgment was not entered against Betty Meadors until February 2,1984, interest at the higher legal rate (the difference is apparently nearly half a percentage point) should not have begun accruing until then.

The government does not contest this point in its brief, and conceded it at oral argument. We hold that the district court erred as to the interest. On remand the district court should determine interest in a manner consistent with § 1961.

B. The ECOA Defense.

Appellant asserts that her signature on the SBA guaranty form was obtained in violation of the ECOA and is therefore unenforceable; and that in disposing of the collateral the SBA wilfully violated her rights. These claims do not merit extended discussion.

The ECOA prohibits a creditor from requiring a spouse’s signature on an application for credit, if the applicant has qualified, under the creditor’s standards, for the amount of the credit requested. 12 C.F.R. § 202.7(d).

The SBA argues that since, by her own admission, Betty Meadors was not required to sign the guaranty, the ECOA is not implicated. We agree, and note that even when the creditor does require the signature of any creditworthy additional party, and the spouse accordingly elects to sign as such an additional party, he or she cannot later raise the ECOA as a defense, since such a signature is valid according to the Regulations promulgated under the act. 12 C.F.R. 202.7(d)(5).1 Evidently the Regulation is not meant to prohibit spouses from signing as guarantors generally, but is instead meant to prohibit a spouse’s being required to sign because he or she is a spouse; where the spouse has not been required to sign at all, she can hardly be said to have been required to sign because she is the principal’s spouse. Since she concedes that she was not required to sign, Betty Meadors does not fall within the protection of the ECOA, and the district court properly granted summary judgment on this issue.

C. The Right to Notice, The Right to a Commercially Reasonable Sale and the Problem of Impairment of Collateral.

The district court found that Betty Mea-dors had waived three of her claims by signing the SBA guaranty form. She raises these claims again on appeal.

(i) Notice and Commercial Reasonableness. Betty Meadors claims that she never received notice of the SBA’s possession and sale of the collateral. She argues that such notice is required by Indiana Law. See Ind.Code § 26-1-9-504 (1976). She also claims that, since she never received notification of the sale, the burden is on the SBA to prove that the sale was conducted in a commercially reasonable manner. See Ind.Code § 26-1-9-504(3) (“every aspect of the disposition including the method, manner, time, place and terms must be commercially reasonable.”) She also claims that the sale was not commercially reasonable because the collateral was sold for much less than it was worth.

The guaranty that Betty Meadors signed contained provisions waiving the right to notice and the right to object to the conditions of sale:

The Undersigned hereby grants to Lender full power, in its uncontrolled discretion and without notice to the under*594signed, but subject to the provisions of any agreement between the debtor or any other party and Lender at the time in force, to deal in any manner with the Liabilities and the collateral, including, but without limiting the generality of the foregoing, the following powers:

(e) In the event of nonpayment when due, ... or in the event of default ..., to realize on the collateral ... at any public or private sale ... without demand, advertisement or notice of the time or place of sale ... (the Undersigned hereby waiving any such demand, advertisement and notice to the extent permitted by law) ... all as Lender in its uncontrolled discretion may deem proper____

(Emphasis added.) The'district court found no provision in any other agreement that would undermine this waiver, and appellant has not brought any to our attention.

SBA guarantors are unconditional or absolute guarantors, and federal courts have held that, by signing the guaranty, they waive such rights as appellant now claims. United States v. Kukowski, 735 F.2d 1057, 1058 (8th Cir.1984); United States v. Outriggers, Inc., 549 F.2d 337, 339 (5th Cir.1977); First National Park Bank v. Johnson, 553 F.2d 599, 601-02 (9th Cir.1977).

The appellant argues that under Indiana law certain rights, including the rights to notice and to a reasonable disposition of the collateral, may not be waived in advance by the debtor, see Indiana Code § 26-1-9-501(3), and that Indiana Code § 26-1-9-504 assures a guarantor the same rights as a debtor. That much is true. But the Indiana Code does not say that those rights cannot be waived by a guarantor, and the Indiana courts have held that in fact a guarantor can waive such rights. Carney v. Central Nal. Bank of Greencastle, 450 N.E.2d 1034, 1037-39 (Ind.App.1983); Holmes v. Rushville Production Credit Ass’n, 170 Ind. App. 509, 353 N.E.2d 509, 512-13, opinion on rehearing, 170 Ind.App. 509, 355 N.E.2d 417, suppl. opinion, 170 Ind.App. 509, 357 N.E.2d 734 (1976) (reinstating original opinion).

We find, therefore, that Betty Meadors waived her right to notice and to a commercially reasonable sale when she signed the guaranty, and that the district court properly granted summary judgment on these issues.

(ii) Impairment of Collateral. Meadors also claims that the SBA willfully “impaired the collateral” by granting an interest in the proceeds to a creditor to whose claims its own were prior. Although Mea-dors also waived a right to reasonable care in the disposition of the collateral, the guaranty provides that the guarantor does not waive his protection where the “deterioration, waste or loss be caused by the willful act or willful failure to act of Lender.” Since Meadors alleges willful impairment, this claim was not waived by the provisions of the guaranty.

As the government points out, however, the issue of willful impairment was not raised in the district court, where Meadors pleaded as an affirmative defense only that the collateral had been negligently impaired. The issue of willful impairment is therefore not properly before this court. Stern v. Gypsum, Inc., 547 F.2d 1329, 1333 (7th Cir.), cert. denied, 434 U.S. 975, 98 S.Ct. 533, 54 L.Ed.2d 467 (1977). Protection against negligent impairment was waived by the provisions of the guaranty. Summary judgment on this issue was therefore also appropriate.

III.

Betty Meadors argues, finally, that she received no consideration for her signature on the guaranty form. She reasons that the signature of a volunteer, who happens upon an agreement after the negotiations have been concluded and the terms set, and who signs as a guarantor although neither side has required her to sign, has not received consideration and therefore is not bound by the agreement.

Consideration has long and consistently been treated as an essential element of *595every contract. Yet there is little agreement about just what consideration is, and that fact makes it difficult to assess a defense of want of consideration in a novel setting. We venture that the setting in which it is raised here is very nearly unique, and the validity of the defense would seem to depend on which interpretation of the doctrine we adopt.

Every interpretation has serious faults. It used to be said that consideration was either a benefit to the promisor, or a detriment to the promisee. In other words, the one who made the promise receives consideration if he gets something, or if the one to whom he makes the promise gives something up. Either alternative will do. If I promise you a thousand dollars if you quit smoking, and you do quit, then even though there may be no benefit to me, I have received consideration: you have given something up. Similarly, I can promise you a thousand dollars if you teach my daughter to sing. If you do teach her — or if you promise to — then I have received consideration even if all the practice sessions and even the final result are of no real benefit to me.

But reflection shows that benefit-detriment is neither necessary nor sufficient for consideration. I may promise to give you a thousand dollars if you quit smoking — I may even do it in writing — and you may give up smoking, and yet my promise may be unenforceable and may be the sort of thing that everyone would agree was without consideration. For you may have given up smoking without ever having learned of my promise. So the detriment in isolation is not sufficient for consideration. On the other hand, I might agree to pay you for something that was neither a benefit to me nor a detriment to you. I might promise to pay you for bringing a benefit on yourself. The reasoning in the classic case of Hamer v. Sidway, 124 N.Y. 538, 27 N.E. 256 (N.Y.App.1891), suggests that the courts will find consideration in such a case. An uncle had promised his nephew $5000 on his twenty-first birthday if the nephew would refrain from drinking, smoking, swearing and playing cards until that time. The nephew evidently fulfilled his part of the deal, but the uncle’s executor resisted his claim against the estate. The court found the promise enforceable:

The defendant contends that the contract was without consideration to support it, and therefore invalid. He asserts that the promisee, by refraining from the use of liquor and tobacco was not harmed, but benefitted; that that which he did was best for him to do, independently of his uncle’s promise, — and insists that it follows that, unless the promisor was benefitted, the contract was without consideration---- Such a rule would not be tolerated and is without foundation in the law____ Courts will not ask whether the thing which forms the consideration does in fact benefit the promisee or a third party, or is of any substantial benefit to anyone. It is enough that something is promised, done, forborne or suffered by the party to whom the promise is made as consideration for the promise made to him.

Id. at 257 (emphasis added).

Perhaps because of such difficulties, the benefit-detriment account of consideration was replaced by a “bargain” theory: there is consideration when each promise or performance has been bargained for, when each has been offered as inducement for the other:

[I]t is the essence of a consideration, that, by the terms of the agreement, it is given and accepted as the motive or inducement of the promise. Conversely, the promise must be made and accepted as the conventional motive or inducement for furnishing the consideration. The root of the whole matter is the relation of reciprocal conventional inducement, each for the other, between consideration and promise.

O.W. Holmes, The Common Law 293-94 (1881)2 The bargain-exchange account fits *596rather neatly into an economic analysis of common law, which sees in this version of the doctrine of consideration an attempt to select out for enforcement those contracts — namely bargained-for exchanges— that promote the increase of value in society-

The state has an independent interest in the enforcement of [bargain] promises. Exchange creates surplus, because each party presumably values what he gets more highly than what he gives. A modern free-enterprise system depends heavily on private planning and on credit transactions that involve exchanges over time. The extent to which private actors will be ready to engage in exchange, and are able to make reliable plans, rests partly on the probability that bargain promises will be kept. Legal enforcement of such promises increases that probability.

Eisenberg, Principles of Consideration, 67 Cornell L. Rev., 640, 643 (1982).3 But a bargained-for exchange is also neither necessary nor sufficient for the existence of consideration. For there is no consideration where an author agrees to give his agent the exclusive right to deal with a manuscript during a six month period, in return for the agent’s agreement to add the manuscript to his list, without a promise that the agent will try to place it. Such agreements are unenforceable, yet “there is a bargain in the sense that the author has obtained something he wants — namely, the chance that this agent might peddle his manuscript — something he could not have obtained other than in return for his promise.” C. Fried, Contract as Promise 31 (1981). And where someone undertakes an obligation because of an obligation that existed in the past but is no longer enforceable, there is consideration even though there is no bargain or exchange. See Za-bella v. Pakel, 242 F.2d 452 (7th Cir.1957); Restatement (Second) of Contracts §§ 82, 83.

Of course, if any theory could persuade us that the cases that stand as counterexamples to it were wrongly decided, we might accept the theory in spite of the cases. But the tendency in the courts has been to favor the accumulated wisdom of the common law over the simplicity of any single-minded theory. Thus Eisenberg argues that consideration is a guise under which judges have tried to deal fairly with contract difficulties, and argues that it is time now to relegate the doctrine and its epicycles to the history books, and bring fairness out into the open in decision-making.

In the past courts decided issues of fairness covertly, and expressed their decisions through the manipulation of rules and exceptions purportedly designed for other ends____ The agenda for the legal community is ... to encourage the courts to perform such review openly.

67 Cornell L.Rev., at 640-41.4

Although it is a beguiling thought to drop the mask and do justice openly, the *597present case seems to us to make manifest the emptiness of such an approach. Having dropped the guise of consideration, what is the fair outcome in a case in which a wife (apparently) gratuitously affixes her name to a guaranty intended for her husband? Where the rules of contract law clearly dictate one result or the other (and there is no fraud or unconscionability) then the fair outcome might be to enforce that result. But to find such rules we are driven back to the doctrine of consideration and its exceptions.5

Since the just solution does not leap out at us, therefore, let us begin by pressing the doctrine of consideration as far as it will go. Where there is no consideration, it has been the general rule that the contract is not enforceable. In this case, under the versions of the doctrine we are acquainted with, there has been no consideration. The government suffered no detriment: its undertaking would have been precisely the same (on the account we have before us) whether or not Mrs. Meadors had signed the guaranty. She gained no benefit, either; whatever benefit passed to her and her husband because of the loan would have passed without her signature. And no bargain was involved. The SBA gave up nothing to induce Mrs. Meadors to sign; her signature induced no act or promise on the part of the SBA. Since there has been no consideration, the general rule would deny the government enforcement of the contract.

The general rule applies to guaranties. If there has been no consideration for a guaranty, the guaranty is not enforceable. But the mindless application of that rule tends to produce unacceptable results; for example, a guarantor ought not to be able to raise the defense that he received no separate consideration for his agreement to act as guarantor — no guaranty would ever be enforceable in such a case unless it could be shown that the guarantor had been paid for his undertaking. And so an apparent exception to the rule arose: no independent consideration is necessary for a guaranty signed at the same time as the principal agreement. The exception is only apparent since it does not deny that consideration is necessary; it only denies that separate consideration is necessary. In other words, the loan made by the prom-isee may be made in consideration for the signatures both of the principal and the guarantor: he may have been unwilling to make the loan in the absence of either.

If the promises of the principal and the surety are made simultaneously, they may be made for a single consideration; the loan of money by the creditor to the principal is a sufficient consideration for the promises of both principal and surety-

Corbin on Contracts § 213.6 That rule, on its face, suggests that because the signing was simultaneous the appellant here cannot raise the defense of lack of consideration. On a benefit-detriment theory, there is nothing more to be said about it.

We believe, however, that that outcome is wrong, and — although cases on this point are naturally rare — we are supported in our belief by the commentators and by the bargain-exchange interpretation of the doctrine of consideration.7 This is not the *598ordinary case of the guarantor signing simultaneously with the principal; this is more like the case mentioned earlier in which X promises to pay Y a thousand dollars if Y gives up smoking, and Y gives up smoking without ever learning of X’s promise. Whether or not there has been benefit to one party or detriment to the other, there has been no bargain here, and the SBA made the loan apparently in ignorance of Mrs. Meadors’ signature. If those are the facts, then we believe that not only has there been no independent consideration, there has been no consideration at all.

In Banco Credito v. Ahorro Ponceno v. Scott, 250 A.2d 387 (Del.Super.1969), the problem was the inverse of the one we have here: the guarantor’s signature had been bargained for but, without the creditor’s knowledge, the guarantor failed to sign. The court relied on Corbin § 213 (“[b]ut for the promise of any surety that is made subsequently to the advancement of the money to the principal, there must be a new consideration”) to conclude that his later signing could not bind him without new consideration. In the most recent Cor-bin (1984 Supplement), the editor discusses that opinion:

[I]t is questionable whether [the rule relied on by the court] was properly applied to the facts alleged. If the guarantee by Scott was at all times contemplated to be given by the parties, then the debt was not “pre-existing” but actually substantially contemporaneous, though considerable time passed before Scott actually got around to signing it____ On the other hand, if Scott’s signature was not originally contemplated as part of the deal, then the debt was “pre-existing” though Scott signed within the hour.

C. Kaufman, Corbin on Contracts § 213 (1984 Supplement) (emphasis added). And this last alternative Corbin contemplates is just the case before us.

For Corbin, the lack of consideration is clear from the fact that the signature was not originally contemplated as part of the deal. Where the creditor does not even know of the signature — as we are assured by both parties is the case here — the lack of a bargain and consequent lack of consideration is even clearer:

Even if the promisee takes some action subsequent to the promise (so that there is no problem of past consideration), and even if the promisor sought that action in exchange for his promise, ... that action is not bargained for unless it is given by the promisee in exchange for the promise. In other words, just as the promis- or’s purpose must be to induce an exchange, so the promisee’s purpose must be to take advantage of the proposed exchange. In practice, the principal effect of this requirement is to deny enforcement of the promise if the promisee takes the action sought by the promisor without knowledge of the promise. As might be supposed, examples are infrequent.

E. Farnsworth, Contracts 64 (1982).8 On the undisputed facts, this case is one of Farnsworth’s infrequent examples.

We note in passing that U.C.C. § 3-408 does not apply here. The first sentence of that section reads:

Want or failure of consideration is a defense as against any person not having the rights of a holder in due course, except that no consideration is necessary for an instrument or obligation *599thereon given in payment of or as security for an antecedent obligation of any kind.

This last clause does not exempt guaranties from the need for consideration since it applies only to negotiable instruments. See U.C.C. § 3-102(l)(e). A guaranty is not a negotiable instrument if it contains a conditional promise to pay, as this one does. See U.C.C. § 3-104(l)(b).

U.C.C. § 3-408 relates only to the validity of commercial paper and does not abolish any preexisting requirement that the underlying contract or an independent contract of guaranty be supported by consideration.

Anderson, Uniform Commercial Code § 3-408:5 (1984). The rationale behind the exception for negotiable instruments “is that since the obligor is in fact indebted to the holder, there is no reason to excuse him from his liability on an instrument which simply makes the chose in action more easily transferable by the holder.” W. Hawk-land and L. Lawrence, Uniform Commercial Code Series § 3-408:04 (1984). In other words, one who pays off an obligation with a negotiable instrument cannot complain that he has not received consideration for that “instrument or obligation thereon.” The cancellation of the prior debt is consideration enough.9

Indiana law does not raise any difficulties for the position we adopt. See especially Davis v. B.C.L. Enterprises, Inc., 406 N.E.2d 1204, 1205 (Ind.App.1980) (“If the guaranty is made at the time of the contract to which it relates, so as to constitute a part of the consideration of the contract, it is sufficient.”).

We hold, therefore, that summary judgment for plaintiff was not appropriate on this point. Although the parties have apparently agreed on the relevant facts, we feel that it would also be inappropriate for us to decide as a matter of law that the guaranty is unenforceable. The district court, relying on a different construction of the law, did not take evidence on the question. Construing the law as we have construed it, it must be resolved whether in fact Betty Meadors’ signature was in any respect whatsoever required, anticipated, requested or relied upon (or, in fact, known of); because if it was not, it was wholly irrelevant to the transaction and does not create an enforceable obligation.

REVERSED AND REMANDED.

WIGGINS, Justice.

Janice Meincke loaned her daughter and nephew $90,000. The loan was secured by a mortgage on property owned by the daughter and nephew’s business. A bank also held mortgages on the same property; however, Janice’s mortgage had priority. For the daughter and nephew to obtain more financing, the bank required Janice to subordinate her mortgage to the bank’s by signing a subordination agreement. Janice signed the agreement, but challenged its enforcement by arguing it lacked consideration. Janice appealed a district court judgment finding of consideration. Our court of appeals reversed the district court by finding substantial evidence did not support the judgment. However, upon further review, we find substantial evidence does support the *226judgment, and we affirm the judgment of the district court.

I. Background Facts and Procedure.

Sandra Marti and Craig Meincke operated two businesses, SCRAMM Enterprises, L.C., and C.A. Meincke Plumbing, Inc. (plumbing business). Both Sandra and Craig owned shares of SCRAMM. In 1997 and 1998 the plumbing business received two loans from Rock Island State Bank, each secured by a mortgage on the building owned by SCRAMM. In February of 2001, the plumbing business signed several notes with Northwest Bank & Trust. These notes were not secured by mortgages.

In July of 2002, Janice, Sandra’s mother and Craig’s aunt, issued SCRAMM three checks totaling $90,000. This loan was reflected in a promissory note dated September 15. The note was secured by a mortgage on the building owned by SCRAMM.

On May 28, 2003, Northwest Bank issued three more notes to the plumbing business. These notes were issued to restructure a preexisting Northwest Bank debt and were secured by a mortgage on the SCRAMM building.

On March 3, 2004, Northwest Bank offered to issue the plumbing business another loan to restructure the existing Northwest Bank debt and refinance the Rock Island State Bank debt. This loan was also to be secured by a mortgage on the SCRAMM building. Before granting the loan, Northwest Bank informed Craig it would not refinance the Rock Island State Bank debt if Janice did not subordinate her mortgage to its own. To comply with this condition, it was necessary for Janice to sign a subordination agreement. James Legare, the vice president commercial loan manager for Northwest Bank, testified the bank would not have made the loan if Janice had refused to sign the subordination agreement. Neither Le-gare nor anyone else from Northwest Bank spoke to Janice about the subordination agreement. Rather, Craig spoke with Janice about the agreement. Although the details of that conversation are unclear, Janice understood after signing the agreement she would be “second in line.”

In May of 2004, approximately two and a half months after the restructuring of the plumbing business, Craig notified Le-gare he was closing the plumbing business. The plumbing business agreed to a voluntary foreclosure on the mortgages held by Northwest Bank. The building was sold, and the proceeds were applied to the two remaining Northwest Bank loans, but debt remained. Janice did not receive any proceeds from the sale.

Janice filed a petition asking the court to find the subordination agreement null and void for lack of consideration. Janice amended her petition to add a count for intentional interference with an existing contract. At trial, Janice motioned the court to amend her petition to add a count of fraud, which the district court denied. Also at trial the court heard testimony on whether the subordination agreement was properly acknowledged. The court held defective acknowledgement of the subordination agreement is not a defense where the controversy involves the original parties to the agreement.

The district court found the agreement was supported by consideration. The court found Northwest Bank suffered a detriment by loaning the plumbing business additional funds in response to Janice signing the subordination agreement.

The district court also found Northwest Bank’s interference with the contract between Janice and SCRAMM was not improper because Janice signed the subor*227dination agreement in part to help her family, and Northwest Bank had a good-faith belief the plumbing business was financially secure when it restructured its loans.

Janice appealed and the case was routed to our court of appeals, who found the consideration for the subordination agreement was not bargained for. Northwest Bank petitioned for further review, which we granted.

II. Issues.

Janice originally appealed, claiming the district court erred: (1) in finding the subordination agreement was supported by consideration; (2) by failing to find the subordination agreement lacked proper ac-knowledgement; (3) by failing to find improper interference with an existing contract; and (4) by denying her motion to amend the petition to add a claim for fraud. The court of appeals found the first issue dispositive; therefore, it did not consider the others.

Northwest Bank petitioned for further review, which we granted. Because we find substantial evidence supported the district court’s determination that the subordination agreement was supported by proper, bargained for consideration, we will address Janice’s other claims on our further review.

III. Discussion.

A. Consideration. Claims based on a contract that are tried at law are reviewed for correction of errors at law. Iowa R.App. P. 6.4; Harrington v. Univ. of N. Iowa, 726 N.W.2d 363, 365 (Iowa 2007). The district court’s findings of fact are binding on the court if they are supported by substantial evidence. Iowa R.App. P. 6.14(6)(a); Fischer v. City of Sioux City, 695 N.W.2d 31, 33 (Iowa 2005). We view the evidence in the light most favorable to the judgment when a party argues the trial court’s ruling is not supported by substantial evidence. Fischer, 695 N.W.2d at 33. Evidence is substantial when reasonable minds accept the evidence as adequate to reach a conclusion. Id. “Evidence is not insubstantial merely because we may draw different conclusions from it; the ultimate question is whether it supports the finding actually made, not whether the evidence would support a different finding.” Raper v. State, 688 N.W.2d 29, 36 (Iowa 2004) (citations omitted). However, appellate courts are not bound to a district court’s conclusion of law or that court’s application of legal conclusions. Id.

It is presumed that an agreement, which has been written and signed, is supported by consideration. Kristerin Dev. Co. v. Granson Inv., 394 N.W.2d 325, 331 (Iowa 1986). A failure of consideration is a defense to enforcing the contract that must be proven by the party asserting the defense. Hubbard Milling Co. v. Citizens State Bank, 385 N.W.2d 255, 259 (Iowa 1986). We determine whether there is consideration from what is stated in the instrument or by what the parties contemplated at the time the instrument was executed. Id. A party can use want of consideration as a defense to a subordination agreement. Id.

Consideration can be either a legal benefit to the promisor, or a legal detriment to the promisee. Magnusson Agency v. Pub. Entity Nat’l Company-Midwest, 560 N.W.2d 20, 27 (Iowa 1997). The district court found the bank suffered a detriment by loaning the plumbing business additional funding. The detriment to the bank is adequate consideration for the subordination agreement. See 55 Am. Jur.2d Mortgages § 320, at 66 (2007) (stating the extension of future credit can serve *228as consideration for a subordination agreement). However, the question here is not whether this detriment was sufficient to constitute consideration; it is whether the benefit or the detriment was bargained for. Magnusson, 560 N.W.2d at 27. According to the Restatement (Second) of Contracts:

(1) To constitute consideration, a performance or a return promise must be bargained for.

(2) A performance or return promise is bargained for if it is sought by the promisor in exchange for his promise and is given by the promisee in exchange for that promise.

§ 71, at 172 (1981); see also id. § 72, at 177 (stating “[e]xcept as stated in §§ 73 and 74, any performance which is bargained for is consideration”). For consideration to be “bargained for,” the consideration must “induce” the making of the promise. Id. § 71 cmt. b, at 173.

A sufficient legal detriment to the promisee exists if the promisee “promises or performs any act, regardless of how slight or inconvenient, which he is not obligated to promise or perform so long as he does so at the request of the promisor and in exchange for the promise.” 3 Samuel Williston & Richard A. Lord, A Treatise on the Law of Contracts § 7:4, at 41 (4th ed. 1992). There is substantial evidence in the record the detriment suffered by the bank was bargained for.

Janice admitted that Craig and Sandra would receive a benefit if she signed the subordination agreement by stating the following:

Question: Okay. And Craig and Sandy received a benefit also because they asked you to do this and this would help their business, correct?

Janice: I suppose, yes.

“[I]t must appear that the disadvantage was suffered at the request of the promi-sor, expressed or implied.” Heggen v. Clover Leaf Coal & Mining Co., 217 Iowa 820, 824, 253 N.W. 140, 142 (1934) (citing Handrahan v. O’Regan, 45 Iowa 298, 300 (1876)) (emphasis added). Janice’s statement implies she understood the bank would lend more money to Craig and Sandra if she signed the subordination agreement. By signing the subordination agreement, Janice impliedly requested Northwest Bank to refinance Craig and Sandra’s loans, thus she requested the bank suffer a detriment.

Because there is substantial evidence the consideration was bargained for, we affirm the district court ruling on the consideration issue.

B. Acknowledgment. Janice argues the district court erred when it refused to render the subordination agreement null and void due to an insufficient acknowledgement. Specifically, Janice argues the document was not properly notarized. At trial both Janice and Legare testified the subordination agreement was not notarized in Janice’s presence, but rather on a later date at the bank.

We have determined improper acknowledgment is not a valid defense in a controversy between original parties. Brose v. Int’l Milling Co., 256 Iowa 875, 880, 129 N.W.2d 672, 675 (1964). We only overturn a rule “ ‘after it has been duly tested by experience, [and it] has been found to be inconsistent with the sense of justice or with the social welfare.’ ” McEl-roy v. State, 703 N.W.2d 385, 395 (Iowa 2005) (quoting Benjamin N. Cardozo, The Nature of the Judicial Process 150 (1921)). We cannot say the rule disallowing the inadequate acknowledgement defense between original parties has been found to be inconsistent with the sense of justice or social welfare. To the contrary, it is gen*229erally held the defense has no merit among original parties. See Joyce Palomar, Patton and Palomar on Land Titles § 356, at 187-88 (3d ed. 2003) (stating “unless required by statute, the certificate of acknowledgement is not a part of a deed, and is unnecessary as against the grantor, her heirs and all others as to whom a conveyance is operative without being of record”).

The acknowledgement is an official instrument used to show the promisor executed an instrument voluntarily. Id. In the case at hand, Janice does not argue she involuntarily signed the subordination agreement, or that she was under coercion or duress when she signed the agreement. Therefore, this case does not present a situation that demonstrates our longstanding rule regarding the improper acknowledgment defense is “ ‘inconsistent with the sense of justice or with social welfare.’ ” McElroy, 703 N.W.2d at 395 (citation omitted).

C. Intentional Interference with a Contract. To establish a claim of intentional interference with a contract, Janice needed to prove Northwest Bank intentionally and improperly interfered with the contract involving Craig, Sandra, and herself. See Nesler v. Fisher & Co., Inc., 452 N.W.2d 191, 198 (Iowa 1990). We have held “a party does not improperly interfere with another’s contract by exercising its own legal rights in protection of its own financial interests.” Berger v. Cas’ Feed Store, Inc., 543 N.W.2d 597, 599 (Iowa 1996). It was not improper for Northwest Bank to ask Janice whether she would subordinate her interest to its own.

D. Amended Petition. At the end of trial Janice moved to amend her original petition to include a claim for fraud. Iowa Rule of Civil Procedure 1.457 allows a party to amend the pleadings to conform to the evidence presented at trial. Iowa R. Civ. P. 1.457. The issues to be tried are established either by the initial pleadings or by the consent of the parties, either expressly or impliedly. Allison-Kesley AG Ctr., Inc. v. Hildebrand, 485 N.W.2d 841, 846 (Iowa 1992). Janice argued the issue of fraud was tried by implied consent of the parties; however, the district court found otherwise. We have held:

“Allowance of an amendment to a pleading is the rule and denial the exception, although an amendment is not permissible which will substantially change the issue. Additionally, a trial court has considerable discretion as to whether an appropriate request for leave to amend should be granted or denied and we will reverse only where a clear abuse of discretion is shown.”

Id. at 845 (quoting M-Z Enters., Inc. v. Hawkeye-Sec. Ins. Co., 318 N.W.2d 408, 411 (Iowa 1982)). To give appropriate deference to the trial court, when a movant seeks to amend a petition based on trial testimony the movant knew or should have known prior to trial, the amendment is more properly denied than one that might have been otherwise allowed earlier in the proceedings. Id. at 846; see also Mora v. Savereid, 222 N.W.2d 417, 422-23 (Iowa 1974) (upholding denial of a motion to amend where testimony presented “no surprise” to moving party).

Janice knew, or should have known, the testimony that supported her fraud claim before trial because Legare offered similar testimony during his deposition; therefore, the district court did not abuse its discretion in denying Janice’s motion to amend her petition. See Allison-Kesley AG Ctr., Inc., 485 N.W.2d at 846 (holding where plaintiff knew or should have known at the inception of the suit of the testimony the defendants offered at trial, the district *230court properly denied the plaintiffs motion to amend).

IV. Disposition.

Because we find substantial evidence to support the district court’s judgment on the issues of consideration, defective acknowledgment, and intentional interference with a contract and because the court did not abuse its discretion when it denied Janice’s motion to amend her petition, we vacate the decision of the court of appeals, and affirm the judgment of the district court.

DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT AFFIRMED.

All justices concur except BAKER, J., who takes no part.

OPINION BY ORIE MELVIN, J.:

¶ 1 Appellant, Pennsy Supply, Inc. (“Pennsy”), appeals from the grant of preliminary objections in the nature of a demurrer in favor of Appellee, American Ash Recycling Corp. of Pennsylvania (“American Ash”). We reverse and remand for further proceedings.

¶ 2 The trial court summarized the allegations of the complaint as follows:

The instant case arises out of a construction project for Northern York High School (Project) owned by Northern York County School District (District) in York County, Pennsylvania. The District entered into a construction contract for the Project with a general contractor, Lobar, Inc. (Lobar). Lobar, in turn, subcontracted the paving of driveways and a parking lot to [Pennsy]. The contract between Lobar and the District included Project Specifications for paving work which required Lobar, through its subcontractor Pennsy, to use certain base aggregates. The Project Specifications permitted substitution of the aggregates with an alternate material known as Treated Ash Aggregate (TAA) or AggRite.

The Project Specifications included a ‘notice to bidders’ of the availability of AggRite at no cost from [American Ash], a supplier of AggRite. The Project Specifications also included a letter to the Project architect from American Ash confirming the availability of a certain amount of free AggRite on a first come, first served basis.

Pennsy contacted American Ash and informed American Ash that it would require approximately 11,000 tons of AggRite for the Project. Pennsy subsequently picked up the AggRite from American Ash and used it for the paving work, in accordance with the Project Specifications.

Pennsy completed the paving work in December 2001. The pavement ultimately developed extensive cracking in February 2002. The District notified ... Lobar[ ] as to the defects and Lobar in turn directed Pennsy to remedy the defective work. Pennsy performed the remedial work during summer 2003 at no cost to the District.

The scope and cost of the remedial work included the removal and appropriate disposal of the AggRite, which is classified as a hazardous waste material by the Pennsylvania Department of Environmental. Protection. Pennsy requested American Ash to arrange for the removal and disposal of the AggRite; *599however, American Ash did not do so. Pennsy provided notice to American Ash of its intention to recover costs.

Trial Court Opinion, 5/27/05, at 1-3 (footnote omitted). Pennsy also alleged that the remedial work cost it $251,940.20 to perform and that it expended an additional $133,777.48 to dispose of the AggRite it removed. Compl. ¶¶ 26, 29.

¶ 3 On November 18, 2004, Pennsy filed a five-count complaint against American Ash alleging breach of contract (Count I); breach of implied warranty of merchantability (Count II); breach of express warranty of merchantability (Count III); breach of warranty of fitness for a particular purpose (Count IV); and promissory estoppel (Count V).1 American Ash filed demurrers to all five counts. Pennsy responded and also sought leave to amend should any demurrer be sustained. The trial court sustained the demurrers by order and opinion dated May 25, 2005 and dismissed the complaint. This appeal followed.2

¶ 4 Pennsy raises three questions for our review:

(1)Whether the trial court erred in not accepting as true ... [the] Complaint allegations that (a) [American Ash] promotes the use of its AggRite material, which is classified as hazardous waste, in order to avoid the high cost of disposing [of] the material itself; and (b) [American Ash] incurred a benefit from Penn-sy’s use of the material in the form of avoidance of the costs of said disposal sufficient to ground contract and warranty claims.

(2) Whether Penns/s relief of [American Ash’s] legal obligation to dispose of a material classified as hazardous waste, such that [American Ash] avoided the costs of disposal thereof at a hazardous waste site, is sufficient consideration to ground contract and warranty claims.

(3) Whether the trial court misconstrued the well-pled facts of the Complaint in dismissing Pennsy’s promissory estoppel claim because Pennsy, according to the court, did not receive [American Ash’s] product specifications until after the paving was completed, which was not pled and is not factual.

Appellant’s Brief at 3.

¶ 5 “Preliminary objections in the nature of a demurrer test the legal sufficiency of the complaint.” Hospodar v. Schick, 885 A.2d 986, 988 (Pa.Super.2005).

When reviewing the dismissal of a complaint based upon preliminary objections in the nature of a demurrer, we treat as true all well-pleaded material, factual averments and all inferences fairly deducible therefrom. Where the preliminary objections will result in the dismissal of the action, the objections may be sustained only in cases that are clear and free from doubt. To be clear and free from doubt that dismissal is appropriate, it must appear with certainty that the law would not permit recovery by the plaintiff upon the facts averred. Any doubt should be resolved by a refusal to sustain the objections. Moreover, we review the trial court’s decision for an abuse of discretion or an error of law.

*600Id. In applying this standard to the instant appeal, we deem it easiest to order our discussion by count.

¶ 6 Count I raises a breach of contract claim. “A cause of action for breach of contract must be established by pleading (1) the existence of a contract, including its essential terms, (2) a breach of a duty imposed by the contract and (3) resultant damages.” Corestates Bank, N.A. v. Cutillo, 723 A.2d 1053, 1058 (Pa.Super.1999). While not every term of a contract must be stated in complete detail, every element must be specifically pleaded. Id. at 1058. Clarity is particularly important where an oral contract is alleged. Snaith v. Snaith, 282 Pa.Super. 450, 422 A.2d 1379, 1382 (1980).

¶ 7 Instantly, the trial court determined that “any alleged agreement between the parties is unenforceable for lack of consideration.” Trial Court Opinion, 5/27/05, at 5. The trial court also stated “the facts as pleaded do not support an inference that disposal costs were part of any bargaining process or that American Ash offered the AggRite with an intent to avoid disposal costs.” Id. at 7 (emphasis added). Thus, we understand the trial court to have dismissed Count I for two reasons related to the necessary element of consideration: one, the allegations of the Complaint established that Pennsy had received a conditional gift from American Ash, see id. 6, 8, and, two, there were no allegations in the Complaint to show that American Ash’s avoidance of disposal costs was part of any bargaining process between the parties. See id. at 7.3

¶ 8 It is axiomatic that consideration is “an essential element of an enforceable contract.” Stelmaek v. Glen Alden Coal Co., 339 Pa. 410, 414-415, 14 A.2d 127, 128 (1940). See also Weavertown Transport Leasing, Inc. v. Moran, 834 A.2d 1169, 1172 (Pa.Super.2003) (stating, “[a] contract is formed when the parties to it (1) reach a mutual understanding, (2) exchange consideration, and (3) delineate the terms of their bargain with sufficient clarity.”). “Consideration consists of a benefit to the promisor or a detriment to the promisee.” Weavertown, 834 A.2d at 1172 (citing Stelmaek). “Consideration must actually be bargained for as the exchange for the promise.” Stelmaek, 339 Pa. at 414, 14 A.2d at 129.

It is not enough, however, that the promisee has suffered a legal detriment at the request of the promisor. The detriment incurred must be the ‘quid pro quo’, or the ‘price’ of the promise, and the inducement for which it was made.... If the promisor merely intends to make a gift to the promisee upon the performance of a condition, the promise is gratuitous and the satisfaction of the condition is not consideration for a contract. The distinction between such a conditional gift and a contract is well illustrated in Williston on Contracts, Rev.Ed., Vol. 1, Section 112, where it is said: ‘If a benevolent man says to a tramp,-‘If you go around the corner to the clothing shop there, you may purchase an overcoat on my credit,’ no reasonable person would understand that the short walk was requested as the consideration for the promise, but that *601in the event of the tramp going to the shop the promisor would make him a gift.’

Weavertown, 834 A.2d at 1172 (quoting Stelmack, 339 Pa. at 414, 14 A.2d at 128-29). Whether a contract is supported by consideration presents a question of law. Davis & Warde, Inc. v. Tripodi, 420 Pa.Super. 450, 616 A.2d 1384 (1992).

¶ 9 The classic formula for the difficult concept of consideration was stated by Justice Oliver Wendell Holmes, Jr. as “the promise must induce the detriment and the detriment must induce the promise.” John Edward Murray, Jr., MuRRAY on CONTRACTS § 60 (3d. ed.1990), at 227 (citing Wisconsin & Michigan Ry. v. Powers, 191 U.S. 379, 24 S.Ct. 107, 48 L.Ed. 229 (1903)). As explained by Professor Murray:

If the promisor made the promise for the purpose of inducing the detriment, the detriment induced the promise. If, however, the promisor made the promise with no particular interest in the detriment that the promisee had to suffer to take advantage of the promised gift or other benefit, the detriment was incidental or conditional to the promis-ee’s receipt of the benefit. Even though the promisee suffered a detriment induced by the promise, the purpose of the promisor was not to have the prom-isee suffer the detriment because she did not seek that detriment in exchange for her promise.

Id. § 60.C, at 230 (emphasis added). This concept is also well summarized in American Jurisprudence:

As to the distinction between consideration and a condition, it is often difficult to determine whether words of condition in a promise indicate a request for consideration or state a mere condition in a gratuitous promise. An aid, though not a conclusive test, in determining which construction of the promise is more reasonable is an inquiry into whether the occurrence of the condition would benefit the promisor. If so, it is a fair inference that the occurrence was requested as consideration. On the other hand, if the occurrence of the condition is no benefit to the promisor but is merely to enable the promisee to receive a gift, the occurrence of the event on which the promise is conditional, though brought about by the promisee in reliance on the promise, is not properly construed as consideration.

17A Am. JuR.2d § 104 (2004 & 2005 Supp.) (emphasis added). See also Restatement (Second) of Contracts § 71 comment c (noting “the distinction between bargain and gift may be a fine one, depending on the motives manifested by the parties”); Carlisle v. T & R Excavating, Inc., 123 Ohio App.3d 277, 704 N.E.2d 39 (1997) (discussing the difference between consideration and a conditional gift and finding no consideration where promisor who promised to do excavating work for preschool being built by ex-wife would receive no benefit from wife’s reimbursement of his material costs).

¶ 10 Upon review, we disagree with the trial court that the allegations of the Complaint show only that American Ash made a conditional gift of the AggRite to Pennsy. In paragraphs 8 and 9 of the Complaint, Pennsy alleged:

American Ash actively promotes the use of AggRite as a building material to be used in base course of paved structures, and provides the material free of charge, in an effort to have others dispose of the material and thereby avoid incurring the disposal costs itself ... American Ash provided the AggRite to Pennsy for use on the Project, which saved American Ash thousands of dollars in disposal costs it otherwise would have incurred.

*602Compl. ¶¶ 8, 9. Accepting these allegations as trae and using the Holmesian formula for consideration, it is a fair interpretation of the Complaint that American Ash’s promise to supply AggRite free of charge induced Pennsy to assume the detriment of collecting and taking title to the material, and critically, that it was this very detriment, whether assumed by Pennsy or some other successful bidder to the paving subcontract, which induced American Ash to make the promise to provide free Ag-gRite for the project. Paragraphs 8-9 of the Complaint simply belie the notion that American Ash offered AggRite as a conditional gift to the successful bidder on the paving subcontract for which American Ash desired and expected nothing in return.4

¶ 11 We turn now to whether consideration is lacking because Pennsy did not allege that American Ash’s avoidance of disposal costs was part of any bargaining process between the parties. The Complaint does not allege that the parties discussed or even that Pennsy understood at the time it requested or accepted the AggRite that Pennsy’s use of the AggRite would allow American Ash to avoid disposal costs.5 However, we do not believe such is necessary.

The bargain theory of consideration does not actually require that the parties bargain over the terms of the agreement. ... According to Holmes, an influential advocate of the bargain theory, what is required [for consideration to exist] is that the promise and the consideration be in ‘the relation of reciprocal conventional inducement, each for the other.’

E. Allen Farnsworth, FaRnswoRth on Contracts § 2.6 (1990) (citing 0. Holmes, The Common Law 293-94 (1881)); see also Restatement (Second) of Contracts § 71 (defining “bargained for” in terms of the Holmesian formula). Here, as explained above, the Complaint alleges facts which, if proven, would show the promise induced the detriment and the detriment induced the promise. This would be consideration. Accordingly, we reverse the dismissal of Count I.

¶ 12 Counts II, III and IV alleged breach of warranty claims under Article 2 of the Uniform Commercial Code (“UCC”). The trial court dismissed these counts as a group upon concluding the facts alleged failed to show a contract for the “sale of goods” as required to trigger application of UCC Article 2. Trial Court Opinion, 5/27/05, at 8 (concluding, “the transaction as pleaded, by which American Ash gave Pennsy free AggRite, amounted to a conditional gift, not a contract of sale”). Again, we disagree that the allegations reveal a transaction that can only be characterized as a conditional gift. We turn now to whether the allegations otherwise trigger application of Article 2.

*603¶ 13 Article 2 applies to “transactions in goods.” 13 Pa.C.S.A. § 2102. AggRite is obviously a good. See 13 Pa. C.S.A. § 2105 (defining “goods” as “all things (including specially manufactured goods) which are moveable at the time of identification to the contract”). Before the protections of the Article 2 warranties apply, “there must be a sale of goods.” Turney Media Fuel, Inc. v. Toll Bros., Inc., 725 A.2d 836, 840 (Pa.Super.1999). See also Whitmer v. Bell Tele. Co. of Pennsylvania, 361 Pa.Super. 282, 522 A.2d 584, 588 (1987) (stating, “[a] prerequisite to an action for breach of warranty [under Article 2] is that there must be a sale.”) (quoting Williams v. West Penn Power Co., 313 Pa.Super. 461, 460 A.2d 278, 281 (1983), modified, 502 Pa. 557, 467 A.2d 811 (1983)).

¶ 14 “A sale [under Article 2] consists in the passing of title from the seller to the buyer for a price.” 13 Pa.C.S.A. § 2106 (parenthetical reference omitted).6 Section 2-304, entitled “Price payable in money, goods, realty or otherwise,” provides in subsection (a) that as a general rule “[t]he price can be made payable in money or otherwise.” 13 Pa.C.S.A. § 2304. Pennsy argues that its acquisition of the AggRite whereby American Ash was relieved of disposal costs can constitute a price within the meaning of the “or otherwise” language in 13 Pa.C.S.A. § 2304. We agree. The few courts to have interpreted the “or otherwise” language of a UCC provision like ours have concluded that it includes any consideration sufficient to ground a contract. See Mortimer B. Burnside & Co. v. Havener Securities Corp., 25 A.D.2d 373, 269 N.Y.S.2d 724 (1966) (citing UCC § 2-304 generally); Wheeler v. Sunbelt Tool Co., Inc., 181 Ill.App.3d 1088, 130 Ill.Dec. 863, 537 N.E.2d 1332 (applying Illinois version of UCC), appeal denied, 127 Ill.2d 644, 136 Ill.Dec. 610, 545 N.E.2d 134 (1989); see also William D. Hawkland, 2 Uniform CommeRcial Code Series § 2-304:3 (1998) (stating, “the entire thrust of section 2-304 seems to be toward making the scope of Article 2 as broad as possible, limited only by due concern for the laws governing the disposition of real property.”) (footnote omitted); see also Hoffman v. Misericordia Hosp., 439 Pa. 501, 507-08, 267 A.2d 867, 870-71 (1970) (noting our Supreme Court has implied warranty protections in non-sales transactions, such as leases and bailments, and reversing lower court decision to dismiss warranty counts on demurrer in action involving blood transfusion). While we recognize Article 2 does not always apply simply because a transfer of goods is not a gift, see Pa.C.S.A. § 2304, comment 2,7 we believe the present situation falls within the scope of the warranty provisions as intended by the drafters. See Hoffman, 439 Pa. at 508, 267 A.2d at 870-71 (faulting lower court for failing to consider whether the warranty policies would be furthered by their implication). This is not a situation where garbage is left on the curb for anyone to retrieve. Contra Grigsby v. Crown Cork & Seal Co., 574 F.Supp. 128 (D.Del.1983) (predicting Delaware Supreme Court would find a sale *604of goods under Delaware’s version of UCC 2-304 but not extend Article 2 warranties in situation where defendant abandoned waste oil to plaintiff because defendant “did not warrant the merchantability or fitness of its waste ... any more than an ordinary citizen warrants the merchantability or fitness of his or her garbage at the time of a garbage collection”). Here, as Pennsy alleged:

American Ash actively promotes the use of AggRite as a building material to be used in base course of paved structures ....

American Ash’s technical data sheets [attached as Ex. H to the Complaint], describing AggRite, indicate that it can be used as a roadbed material meeting the requirements of PennDOT specifications.

American Ash’s literature [attached as Ex. H to the Complaint] also indicates that AggRite can be used as a replacement for type 2A aggregate base course material.

Compl. ¶¶ 8, 47-48. On these facts, we cannot say the law would clearly preclude recovery on Counts II, III and IV, and, accordingly, we reverse the grant of the demurrer to the extent dismissal of these counts was based on Pennsy’s failure to allege a sale of goods.

¶ 15 Count V presented a claim for promissory estoppel, which the trial court dismissed upon concluding that the Complaint failed to allege either a promise or detrimental reliance on a promise. Trial Court Opinion, 5/27/05, at 9. To the extent Pennsy alleged reliance upon promises made in the promotional material for Ag-gRite, the trial court, noting Pennsy had received such promotional material only after the cracking situation arose, deemed disingenuous Pennsy’s attempt to cite the promotional materials as the basis for a promise or for reliance thereon. Id. at 9. Additionally, the trial court determined that the facts alleged “do not substantiate the existence of a promise by which American Ash directly represented to Pennsy (and upon which Pennsy relied) that Ag-gRite would be suitable for the Project. The facts as pleaded instead establish that Pennsy relied on the Project Specifications which provided for AggRite use.” Id. at 9-10 (emphasis added). While the trial court recognized that, unless American Ash had made such representations to either the project architect or the general contractor, it was unlikely the Project Specifications would have authorized use of AggRite, it nonetheless deemed unsupported by the law Pennsy’s “reliance on reliance” theory. Id. at 10.8

¶ 16 “In order to maintain an action in promissory estoppel, the aggrieved party must show that 1) the promisor made a promise that he should have reasonably expected to induce action or forbearance on the part of the promisee; 2) the promisee actually took action or refrained from taking action in reliance on the promise; and 3) injustice can be avoided only by enforcing the promise.” Crouse v. Cyclops Industries, 560 Pa. 394, 403, 745 A.2d 606, 610 (2000). While we recognize that promissory estoppel is used to enforce a promise not otherwise supported by consideration, see id. at 402, 745 A.2d at 610, we nonetheless address the propriety of the trial court’s dismissal of Count V should the contract claim otherwise fail.

¶ 17 Pennsy first contends the trial court erred in overlooking paragraph 49 of the *605Complaint, which alleges that .American Ash directly represented AggRite’s suitability for the project to Pennsy. See Complaint at ¶ 49 (stating “[a] representative of American Ash attended a Project meeting during which he made express assurances, as documented in a memorandum summarizing the Project meeting, that AggRite was suitable to be used as a base course on the Project.”). See also id. at ¶ 54 (averring “American Ash communicated to Pennsy during Project meetings that the AggRite material was suitable for its intended use on the Project as roadbed material”). Paragraph 49 referenced a copy of meeting minutes attached to the Complaint. The minutes, dated 8/15/01, purported to summarize a site meeting held 8/2/01, “concerning my [John Page’s] questions on the AggRite material being used for the parking sub-base.”9 The meeting thus occurred before Pennsy and American Ash reached agreement, see Compl. at ¶ 10 (referring to “on or about August 21, 2001”) but after Pennsy entered into the subcontract with Lobar which it bid assuming use of the free AggRite.

¶ 18 That Pennsy relied in the first instance on the Project Specifications does not negate its allegation that American Ash made a direct representation to Penn-sy about the suitability of AggRite for the project and that Pennsy relied on that direct representation. Even though Pennsy had already secured the subcontract, had the direct representation about the suitability of AggRite not been made it is at least conceivable that the underlying course of events may have been different. Whether American Ash should have reasonably expected to induce action or forbearance on the part of the promise through this direct representation and whether Pennsy took action or refrained from taking action in reliance on that direct representation is a matter for further discovery.

¶ 19 Furthermore, we find the trial court’s reliance upon Pennsy’s acknowl-edgement that it did not actually receive the promotional materials for AggRite until after the cracking situation occurred to support its conclusion that American Ash did not make a direct promise to Pennsy through those materials is misplaced. The argument Pennsy presents is that because it alleged that the project architect received the promotional materials and/or other explicit promises from American Ash regarding AggRite’s suitability for the project and relied on those promises in issuing the Project Specifications under which Pennsy successfully bid the subcontract, its promissory estoppel claim is viable. We agree.

¶ 20 In Artkraft Strauss Sign Corp. v. Dimeling, 429 Pa.Super. 65, 681 A.2d 1058 (1993), this Court permitted Artkraft, who relied upon representations made by one Levin to Classic (an investment partnership) regarding the authority of another entity (Kelly Operating Co.) to enter a sublease in a situation where Classic in turn contacted with Artkraft to design, construct and paint a sign, to recover in promissory estoppel from Levin. We explained that Levin’s failure to inquire into Kelly’s authority to make the sublease coupled with his subsequent active representations to the other parties that Kelly did possess such authority, “constitutes sufficient grounds to invoke equitable relief and supports invoking both equitable and promissory estoppel.” Id. at 1062. We further explained that it was Levin’s actions, more than any other party, which *606resulted in the losses borne by Artkraft. Id.

¶21 Further, “[t]he doctrine [of promissory estoppel] embodied in [§ ] 90 of the Restatement (Second) of Contracts ... is the law of Pennsylvania,” Central Storage & Transfer Co. v. Kaplan, 487 Pa. 485, 489, 410 A.2d 292, 294 (1979), and that section provides in relevant part:

(1) A promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise.

(emphasis added). Application of this section, while clearest in the case of an intended third party beneficiary, is not limited to such. See MuRRAY on ContRacts § 66.B.2, at 281 (“The Restatement 2d version of § 90, however, would also permit a recovery by a third party who justifiably relies [on the promise made to the promis-ee] even though such party is not an intended beneficiary”). Where clear justifiable reliance by the third party is shown, courts have been willing to endorse the broad reach of Section 90. See Masonry v. Miller Construction, 558 So.2d 433 (Fla.App.1990) (holding subcontractor’s insurer was estopped from denying coverage under policy erroneously issued to subcontractor where general contractor relied on the policy as proof of subcontractor’s worker’s compensation coverage in permitting subcontractor on the job-site and where general contractor’s insurance sought reimbursement from subcontractor’s insurer for payment made to injured employee of subcontractor). Thus, the law does not clearly prohibit recovery in promissory estoppel on the facts alleged. Accordingly, we reverse the dismissal of Count Y.

¶ 22 For all of the foregoing reasons, we reverse the trial court’s order granting the demurrers and dismissing the Complaint and remand for further proceedings. Jurisdiction relinquished.

OPINION

KALITOWSKI, Judge.

Jace Reed appeals the district court’s dismissal of personal injury claims against University of North Dakota (UND) Coaches John Gasparini and James Seanlan and its dismissal of personal injury and contract claims against UND.

FACTS

UND is an arm of the sovereign State of North Dakota. In 1989, UND recruited Reed, a Grand Rapids High School student, to play college hockey. After being offered a scholarship, Reed signed a National Letter of Intent and played hockey for two years at UND.

On September 15, 1991, as part of UND’s pre-season conditioning, Reed participated in a 10-kilometer charity road race sponsored by the North Dakota Association for the Disabled (NDAD). The race took place in North Dakota. During the race, Reed collapsed due to dehydration and suffered extensive damage to vital organs. As a result, Reed incurred substantial medical expenses.

Reed initially filed suit in North Dakota Federal District Court against UND, Coach Gasparini, Coach Seanlan, Coach Craig Perry, and athletic trainer Chad Peterson, but later voluntarily dismissed that suit. Reed then filed a personal injury suit in Minnesota district court in Grand Rapids against NDAD and the five defendants named in the federal action, and breach of contract claims against UND. Seanlan and Gasparini were personally served while in Minnesota. All six defendants moved to dismiss on jurisdictional grounds.

Following a June 20, 1994, hearing, the district court dismissed NDAD for lack of personal jurisdiction. The court allowed Reed to complete discovery on the issues of immunity, jurisdiction, and choice of law as applied to the remaining five defendants. Reed subsequently filed suit against the same six defendants in North. Dakota state court. The North Dakota court stayed the action pending an outcome in this case.

In opposition to defendants’ motions to dismiss, Reed alleged that Gasparini and Seanlan had personal and professional contacts with the State of Minnesota, and that UND, and in particular the UND hockey program, had numerous contacts with Minnesota.

In January of 1995, the remaining five defendants renewed their motions to dismiss, presenting arguments on lack of jurisdiction, forum non conveniens, comity, choice of law, sovereign immunity, and discretionary immunity. Following a hearing, the district court, on May 22, 1995, dismissed claims against Gasparini and Seanlan on forum non conve-niens grounds. The court also dismissed claims against Perry, Peterson, and UND for lack of personal jurisdiction. Reed appeals dismissal of the claims against Gasparini, Seanlan, and UND.

ISSUES

1. Did the district court err in concluding North Dakota law applies to this case?

2. Should the courts of Minnesota exercise jurisdiction over UND and its agents for personal injuries that occurred exclusively in North Dakota?

3. Did the district court err in concluding that Reed’s contract claims fail as a matter of law?

ANALYSIS

Initially, we note that the district court addressed jurisdictional questions regarding UND and UND’s agents Gasparini *108and Scanlan separately. Reed, however, conceded at oral argument that he is suing Gasparini and Scanlan only in their capacities as coaches of UND and therefore as agents of UND and the State of North Dakota. A principal is liable for the act of its agent committed within the scope of agency. Semrad v. Edina Realty, Inc., 493 N.W.2d 528, 535 (Minn.1992). Accordingly, we apply the principles of law discussed below in sections I and II to both UND and its agents Gaspar-ini and Scanlan.

The district court dismissed personal injury claims against UND for lack of personal jurisdiction and against Gasparini and Scan-lan on the basis of forum non conveniens. We conclude, however, that there are overriding policy reasons for addressing the dismissals on the alternate grounds presented to the district court of choice of law and comity. The district court ruled that North Dakota law applies in this action, but did not address the issue of comity.

I.

The district court determined that North Dakota law, rather than Minnesota law, applies to this action. We agree.

The first step in a choice of law analysis is to determine whether there is an actual conflict between the states’ laws. Jepson v. General Casualty Co. of Wisconsin, 513 N.W.2d 467, 469 (Minn.1994). In 1994, North Dakota prospectively abolished sovereign immunity for the state and its agents with respect to tort liability. Bulman v. Hulstrand Constr. Co., Inc., 521 N.W.2d 632, 639 (N.D.1994). Minnesota abolished sovereign immunity for torts many years earlier. Nieting v. Blondell, 306 Minn. 122, 235 N.W.2d 597, 603 (1975). Because Reed’s claims arose before North Dakota abolished sovereign immunity in Bulman, the laws of Minnesota and North Dakota conflict with respect to sovereign immunity.

The second step in a choice of law analysis is to determine whether there are sufficient contacts with a state to make application of its law consistent with the requirements of due process. Jepson, 513 N.W.2d at 469. Minnesota has adopted the United States Supreme Court test for sufficient contacts, holding that

for a state’s substantive law to be selected in a constitutionally permissible manner, that State must have a significant contact or significant aggregation of contacts, creating state interests, such that choice of its law is neither arbitrary nor fundamentally unfair.

Jepson, 513 N.W.2d at 469-70 (emphasis added) (quoting Allstate Ins. Co. v. Hague, 449 U.S. 302, 312-13, 101 S.Ct. 633, 640, 66 L.Ed.2d 521 (1981)). While UND and its agents have extensive contacts with Minnesota, those contacts are completely unrelated to Reed’s negligence claims arising in North Dakota. Because the contacts here are unrelated, applying Minnesota law is arguably arbitrary and unfair. To the contrary, sufficient contacts clearly exist with North Dakota to make the application of North Dakota law constitutional.

The third step in a choice of law analysis involves balancing the factors of Milkovich v. Saari, 295 Minn. 155, 203 N.W.2d 408 (1973). Jepson, 513 N.W.2d at 470. Assuming sufficient Minnesota contacts exist to meet the requirements of due process, application of the five Milkovich factors leads us to conclude that North Dakota law applies to this case.

The first Milkovich factor, “predictability of result,” has little bearing on a tort case. Jepson, 513 N.W.2d at 470. The second Milkovich factor, “maintenance of interstate order,” weighs heavily in favor of applying North Dakota law. See id. As noted in Jepson

we are primarily concerned with whether the application of Minnesota law would manifest disrespect for North Dakota’s sovereignty or impede the interstate movement of people and goods.

Jepson, 513 N.W.2d at 471. First, we note the disrespect inherent in applying Minnesota law to enable an action to be brought against a sovereign entitled to immunity under its own law. In addition, Reed’s decision to commence and voluntarily dismiss an action in federal district court and bring similar actions in Minnesota and North Dakota state courts, at the very least gives the appearance *109of forum shopping. Forum shopping is not encouraged in Minnesota because it frustrates the maintenance of interstate order. Id. at 471-72.

The third Milkovich factor is “simplification of the judicial task.” Id. at 472. This factor also weighs in favor of applying North Dakota law. Applying Minnesota sovereign immunity law to actions of North Dakota’s sovereign would be complicated because collection of any judgment awarded in Minnesota would require a North Dakota legislative appropriation. In addition, UND has raised discretionary immunity as a defense. The application of Minnesota law on discretionary immunity to actions of North Dakota’s sovereign that occurred in North Dakota creates additional difficulty.

The fourth Milkovich factor considers the “advancement of the forum’s governmental interest.” Id. at 470. Although Minnesota places great value in compensating tort victims, an interest in maintaining interstate order may override an interest in compensating tort victims. Id. at 472.

Under the fifth Milkovich factor, we consider which forum has the better rule of law. Id. We conclude that Minnesota has the better rule of law on sovereign immunity, especially in light of North Dakota’s recent change in law to accord with Minnesota law. This factor, however, only applies when the other four factors are not dispositive. Myers v. Government Employees Ins. Co., 302 Minn. 359, 368, 225 N.W.2d 238, 244 (1974). Here, the other factors lead us to conclude that North Dakota law applies. Accordingly, we affirm the district court’s determination that North Dakota law applies to this matter.

II.

The district court dismissed personal injury claims against UND for lack of personal jurisdiction and against Gasparini and Scan-lan on the basis of forum non conveniens. Because we conclude dismissal was proper based on the doctrine of comity we need not address whether dismissal was also proper on alternative grounds. See Myers Through Myers v. Price, 463 N.W.2d 773, 775 (Minn.App.1990) (appellate court will affirm district court if district court’s decision can be sustained on any grounds), review denied (Minn. Feb. 4,1991).

The doctrine of comity demands that a court exercise extreme care and restraint in taking an action that may interfere with the jurisdiction of a foreign court. Medtronic, Inc. v. Catalyst Research Corp., 518 F.Supp. 946, 955 (D.Minn.1981), aff'd 664 F.2d 660 (8th Cir.1981). Numerous courts have applied the doctrine of comity for the purpose of respecting another state’s sovereign immunity. See Wells v. Vincennes Univ., 982 F.2d 1147, 1150-52 (7th Cir.1992); Lee v. Miller County, 800 F.2d 1372, 1375 (5th Cir.1986); University of Iowa Press v. Urrea, 211 Ga.App. 564, 440 S.E.2d 203, 204 (1993); Schoeberlein v. Purdue Univ., 129 Ill.2d 372, 135 Ill.Dec. 787, 792, 544 N.E.2d 283, 288 (1989); Clement v. State, 524 N.E.2d 36, 43 n. 3 (Ind.Ct.App.1988); Newberry v. Georgia Dep’t of Indus. & Trade, 286 S.C. 574, 336 S.E.2d 464, 465 (1985).

The United States Supreme Court has held that while nothing in the Federal Constitution requires a forum to recognize the sovereign immunity of another state, the forum may do so as a matter of comity. Nevada v. Hall, 440 U.S. 410, 426, 99 S.Ct. 1182, 1191, 59 L.Ed.2d 416 (1979). In Nevada v. Hall, California residents were injured in California by a vehicle driven by an employee of the University of Nevada. Id. at 411, 99 S.Ct. at 1183-84. After the injured plaintiffs successfully sued in California, Nevada appealed, asserting its sovereign immunity. Id. at 413-14, 99 S.Ct. at 1184-85. Although the Supreme Court allowed California to exercise jurisdiction over Nevada, the Court stated that it “presumed that the States intended to adopt policies of broad comity toward one another.” Id. at 425, 99 S.Ct. at 1190-91. The Court cautioned that

[i]t may be wise policy, as a matter of harmonious interstate relations, for States to accord each other immunity or to respect any established limits on liability.

Id. at 426, 99 S.Ct. at 1191. The fact that the accident occurred in California was relevant to the court’s decision to allow California to exercise jurisdiction over Nevada. Id. *110at 424 n. 24, 426, 99 S.Ct. at 1190 n. 24, 1191. Accordingly, the majority opinion notes that

[sjuits involving traffic accidents occurring outside of Nevada could hardly interfere with Nevada’s capacity to fulfill its own sovereign responsibilities.

Id. at 424 n. 24, 99 S.Ct. at 1190 n. 24.

Unlike the facts in Nevada v. Hall, here we have plaintiffs suing North Dakota in a Minnesota court for actions that occurred in North Dakota. California necessarily had a stronger interest in providing a forum than Minnesota does in the present case. Further, the strong dissent of three Justices in Nevada v. Hall, plus the language from the majority opinion quoted above, leads us to conclude that had the accident occurred in Nevada the Supreme Court may have reached a different result.

Minnesota’s interest is also lessened by the fact that North Dakota law applies to the present case. As the Supreme Court has stated in analyzing the application of forum non conveniens:

There is a local interest in having localized controversies decided at home. There is an appropriateness, too, in having the trial ⅜ * ⅜ in a forum that is at home with the state law that must govern the case, rather than having a court in some other forum untangle problems in conflict of laws, and in law foreign to itself.

Gulf Oil Corp v. Gilbert, 330 U.S. 501, 509, 67 S.Ct. 839, 843, 91 L.Ed. 1055 (1947).

In conclusion, what we have here is an attempt to hale the North Dakota sovereign into Minnesota court and apply Minnesota law to negligence claims that arose in North Dakota. Such action not only raises concerns about interstate relations in a federal system, but also presents an affront to North Dakota’s sovereignty since North Dakota law at the time of Reed’s injury recognized the sovereign immunity of UND and its agents. Accordingly, we conclude Minnesota courts should not exercise jurisdiction here as a matter of comity. Therefore, we affirm the district court’s conclusion that Reed’s personal injury claims against UND and its agents should be dismissed.

III.

Reed argues that UND breached either an oral contract or a written contract formed in Minnesota by the signing of the National Letter of Intent. We conclude the contract claims fail as a matter of law.

The district court applied the summary judgment standard in reviewing the contract claims because the court admitted matters outside the pleadings. See Minn. R.Civ.P. 12.02 (where a motion seeks dismissal for failure to state a claim upon which relief can be granted and matters outside the pleadings are presented to the court, the motion shall be treated as one for summary judgment). Summary judgment shall be granted where there is no genuine issue of material fact and either party is entitled to judgment as a matter of law. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn.1993).

Reed alleges he entered into an oral contract with UND. He has not, however, identified a breach of a specific contractual provision despite being given the opportunity to do so through discovery. Reed presents no evidence that his agreement to play hockey was conditioned on an obligation by UND to provide health care. While Reed speculates that colleges have a duty to protect the health of their athletes, he fails to demonstrate how such duty is grounded in contract.

Further, assuming, as Reed contends, that the Letter of Intent is a written contract, Reed has again failed to identify a breach of any specific provision. Pursuant to the Letter of Intent, UND agreed to give Reed financial aid in exchange for his agreement to play hockey. Reed does not allege that UND breached this agreement and the Letter of Intent contains no provisions regarding UND’s responsibilities regarding medical care. We therefore conclude the district court correctly determined that, when viewed in a light most favorable to Reed, the contract claims fail as a matter of law.

DECISION

North Dakota law applies to this ease arising from injuries sustained in North Dakota as a result of alleged acts of the North Dakota sovereign that took place in North *111Dakota. Assuming jurisdiction exists to consider Reed’s negligence claims against UND and its agents, the courts of Minnesota must decline the exercise of such jurisdiction as a matter of comity. Further, Reed’s contract claims fail as a matter of law.

Affirmed.

■SurmiVAN, J.

In the district court of Lancaster county the plaintiff Katie Scothorn recovered judgment against the defend*54ant Andrew D. Ricketts, as executor of the last will and testament of John C. Ricketts, deceased. The action was based upon a promissory note, of which the following is a copy:

“May the first, 1891. I promise to pay to Katie Scothorn on demand, $2,000, to be at 6 per cent per annum. J. 0. Ricketts.”

In the petition the plaintiff alleges that the consideration for the execution of the note 'was that she should surrender her employment as bookkeeper for Mayer Bros, and cease to work for a living. She also alleges that the note was given to induce her to abandon her occupation, and that, relying on it, and on the annual interest, as a means of support, she gave up the employment in which she Avas then engaged. These allegations of the petition are denied by the executor. The material facts are undisputed. They are as folloAA’-s: John C. Ricketts, the maker of the note, was the grandfather of the plaintiff. Early in May, — presumably on the day the note bears date, — he called on her at the store where she was working. What transpired between them is thus described by Mr. Plodene, one of the plaintiff’s Avitnesses:

A. Well the old gentleman came in there one morning about 9 o’clock, — probably a little before or a little after, but early in the morning, — and he unbuttoned his vest and took out a piece of paper in the shape of- a note; that is the Avay it looked to me; and he says to Miss Scothorn, “I lmve fixed out something that you have not got to work any more.” He says, “None o.f my grandchildren work and you don’t have to.”

Q. Where Avas she?

A. She took the piece of paper and kissed him; and kissed the old gentleman and commenced to cry.

It seems Miss Scothorn immediately notified her employer- of her intention to quit work and that' she ■ did soon after abandon her occupation. The mother of the plaintiff Avas a Avitness and testified that she had a eonAowsation with her father, Mr, Ricketts, shortly after the *55note was executed in which he informed her that he had given the note to the plaintiff to enable her to quit work; that none of his grandchildren worked and he did not think she ought to. For something more than a year the plaintiff was without an occupation; but in September, 1892, with the consent of her grandfather, and by his assistance, she secured a position as bookkeeper with Messrs. Funke & Ogden. On June 8, 1894, Mr. Ricketts died. He had paid one year’s interest on the note, and a short time before his death expressed regret that he had not been able to pay the balance. In the summer or fall of 1892 he stated to his daughter, Mrs. Scothorn, that if he could sell his farm in Ohio he would pay the note out of the proceeds. I-Ie at no time repudiated the obligation. We quite agree with counsel for the defendant that upon this evidence there was nothing to submit to the jury, and that a verdict should have been directed peremptorily for one of the parties. The testimony of Flodene and Mrs. Scothorn, taken together, conclusively establishes the fact that the note was not given in consideration of the plaintiff pursuing, or agreeing to pursue, any particular line of conduct. There was no promise on the part of the plaintiff to do or refrain from doing anything. Her right to the money promised in the note was not made to depend upon an abandonment of her employ-, ment with Mayer Bros, and future abstention from like service. Mr. Ricketts made no condition, requirement, or request. He exacted no quid pro quo. He gave the note as a gratuity and looked for nothing in return. So far as the evidence discloses, it was his purpose to place the plaintiff in a position of independence where she could work or remain idle as she might choose. The abandonment by Miss Scothorn of her position as bookkeeper was altogether voluntary. It was not an act done in fulfillment of any contract obligation assumed when she accepted the note. The instrument in suit being-given without any valuable consideration, was nothing-more than .a promise to make a gift ip the future of the *56sum of money therein named.’ Ordinarily, such promises are not enforceable even when put in the form of a promissory note. (Kirkpatrick v. Taylor, 43 Ill. 207; Phelps v. Phelps, 28 Barb. [N. Y.] 121; Johnston v. driest, 85 Ind. 503; Fink v. Cox, 18 Johns. [N. Y.] 145.) But it has often been held that an action on a note given to a church, college, or other like institution, upon the faith of which money has been expended or obligations incui’red, could not be successfully defended on the ground of a want of consideration. (Barnes v. Perine, 12 N. Y. 18; Philomath College v. Hartless, 6 Ore. 158; Thompson v. Mercer County, 40 Ill. 379; Invin v. Lombard University, 56 O. St. 9.) In this class of cases the note in suit is nearly always spoken of as a gift or donation, but the decision is generally put on the ground that the expenditure of money or assumption of liability by the donee, on the faith of the promise, constitutes a valuable and sufficient consideration. It seems to us that the true reason is the preclusion of the defendant; under the doctrine of estoppel, to deny the consideration. Such seems to be the view of the matter taken by the supreme court of Iowa in the case of Simpson Centenary College v. Tuttle, 71 Ia. 596, where Rothrock, J., speaking for the court, said: “Where a note, however, is based on a promise to give for the support of the objects referred to, it may still be open to this defense [want of consideration], unless it shall appear that the donee has, prior to any revocation, entered into engagements or made expenditures based on such promise, so that he must suffer loss or injury if the note is not paid. This is based on the equitable principle that, after allowing the donee to incur obligations on the- faith that' the note would be paid, the donor would be estopped from pleading want of consideration.” And in the case of Reimensnyder v. Gans, 110 Pa. St. 17, 2 Atl. Rep. 425, which was an action on a note given as a donation to a charitable object, the court said: “The fact is that, as we may see from the case of Ryerss v. Trustees, 33 Pq. St. 114, a contract pf the kind here iip *57volved is enforceable ratlier by way of estoppel than on the ground of consideration in the original undertaking.” It has been held that a note given in expectation of the payee performing certain services, but without any contract binding him to serve, will not support an action. (Hulse v. Hulse, 84 Eng. Com. Law 709.) But when the payee changes his position to his disadvantage, in reliance on the promise, a right of action does arise. (McClure v. Wilson, 43 Ill. 356; Trustees v. Garvey, 53 Ill. 401.)

Under the circumstances of this case is there an equitable estoppel which ought to preclude the defendant from alleging that the note in controversy is lacking in one of the essential elements of a valid contract? We think there is. An estoppel in puis is defined to be “a right arising from acts, admissions, or conduct which have induced a change of position in accordance with the real or apparent intention of the party against whom they are alleged.” Mr. Pomeroy has formulated the following definition: “Equitable estoppel is the effect of the voluntary conduct of a party whereby he is absolutely precluded, both at law and in equity, from asserting rights which might perhaps have otherwise existed, either of property, or contract; or of remedy, as against another person who in good faith relied upon such conduct, and has been led thereby to change his position for the worse, and Avho on his part acquires some corresponding right either of property, of contract, or of remedy.” (2 Pomeroy, Equity Jurisprudence 804.)

According to the undisputed proof, as shoAvn byctherecord before us, the plaintiff was a working girl, holding a position in Avliich she earned a scalar,^vof $10 per week. Her grandfather, desiring tq^putyher in a position of independence, gave her the note, accompanying it with the remark that his other grandchildren did not work, and that she would not be obliged to work any longer. In effect .he., suggested that she might abandon her employment and rely in the future upon the bounty Avhich he promised, He, doubtless, desired that she should give *58up her occupation, but whether he did or not, it is entirely certain that he contemplated such action on her part as a reasonable and probable consequence of his gift. Having intentionally influenced the plaintiff to alter her position for the worse on the faith of the note being paid when due, it would be grossly inequitable to permit the maker, or his executor, to resist payment on the ground that the promise was given without consideration. The petition charges the elements of an equitable estoppel, and the evidence conclusively establishes them. If errors intervened at the trial they could not have been prejudicial. A verdict for the defendant would be unwarranted. The judgment is right and is

Affirmed.

OPINION

SHEA, Justice.

The defendant employer, Plantations Steel Company (Plantations), appeals from *1093a Superior Court judgment for the plaintiff employee, Edward J. Hayes (Hayes). The trial justice, sitting without a jury, found that Plantations was obligated to Hayes on the basis of an implied-in-fact contract to pay him a yearly pension of $5,000. The award covered three years in which payment had not been made. The trial justice ruled, also, that Hayes had made a sufficient showing of detrimental reliance upon Plantations’s promise to pay to give rise to its obligation based on the theory of promissory estoppel. The trial justice, however, found in part for Plantations in ruling that the payments to Hayes were not governed by the Employee Retirement Income Security Act, 29 U.S.C.A. §§ 1001-1461 (West 1975), and consequently he was not entitled to attorney’s fees under § 1132(g) of that act. Both parties have appealed.

We reverse the findings of the trial justice regarding Plantations’s contractual obligation to pay Hayes a pension. Consequently we need not deal with the cross-appeal concerning the award of attorney’s fees under the federal statute.

Plantations is a closely held Rhode Island corporation engaged in the manufacture of steel reinforcing rods for use in concrete construction. The company was founded by Hugo R. Mainelli, Sr., and Alexander A. DiMartino. A dispute between their two families in 1976 and 1977 left the DiMartinos in full control of the corporation. Hayes was an employee of the corporation from 1947 until his retirement in 1972 at age of sixty-five. He began with Plantations as an “estimator and draftsman” and ended his career as general manager, a position of considerable responsibility. Starting in January 1973 and continuing until January 1976, Hayes received the annual sum of $5,000 from Plantations. Hayes instituted this action in December 1977, after the then company management refused to make any further payments.

Hayes testified that in January 1972 he announced his intention to retire the following July, after twenty-five years of continuous service. He decided to retire because he had worked continuously for fifty-one years. He stated, however, that he would not have retired had he not expected to receive a pension. After he stopped working for Plantations, he sought no other employment.

Approximately one week before his actual retirement Hayes spoke with Hugo R. Mainelli, Jr., who was then an officer and a stockholder of Plantations. This conversation was the first and only one concerning payments of a pension to Hayes during retirement. Mainelli said that the company “would take care” of him. There was no mention of a sum of money or a percentage of salary that Hayes would receive. There was no formal authorization for payments by Plantations’s shareholders and/or board of directors. Indeed, there was never any formal provision for a pension plan for any employee other than for unionized employees, who benefit from an arrangement through their union. The plaintiff was not a union member.

Mr. Mainelli, Jr., testified that his father, Hugo R. Mainelli, Sr., had authorized the first payment “as a token of appreciation for the many years of [Hayes’s] service.” Furthermore, “it was implied that that check would continue on an annual basis.” Mainelli also testified that it was his “personal intention” that the payments would continue for “as long as I was around.”

Mainelli testified that after Hayes’s retirement, he would visit the premises each year to say hello and renew old acquaintances. During the course of his visits, Hayes would thank Mainelli for the previous check and ask how long it would continue so that he could plan an orderly retirement.

The payments were discontinued after 1976. At that time a succession of several poor business years plus the stockholders’ dispute, resulting in the takeover by the DiMartino family, contributed to the decision to stop the payments.

The trial justice ruled that Plantations owed Hayes his annual sum of $5,000 for the years 1977 through 1979. The ruling implied that barring bankruptcy or the cessation of business for any other reason, *1094Hayes had a right to expect continued annual payments.

The trial justice found that Hugo Mainel-li, Jr.’s statement that Hayes would be taken care of after his retirement was a promise. Although no sum of money was mentioned in 1972, the four annual payments of $5,000 established that otherwise unspecified term of the contract. The trial justice also found that Hayes supplied consideration for the promise by voluntarily retiring, because he was under no obligation to do so. From the words and conduct of the parties and from the surrounding circumstances, the trial justice concluded that there existed an implied contract obligating the company to pay a pension to Hayes for life. The trial justice made a further finding that even if Hayes had not truly bargained for a pension by voluntarily retiring, he had nevertheless incurred the detriment of foregoing other employment in reliance upon the company’s promise. He specifically held that Hayes’s retirement was in response to the promise and held also that Hayes refrained from seeking other employment in further reliance thereon.

The findings of fact of a trial justice sitting without a jury are entitled to great weight when reviewed by this court. His findings will not be disturbed unless it can be shown that they are clearly wrong or that the trial justice misconceived or overlooked material evidence. Lisi v. Marra, R.I., 424 A.2d 1052 (1981); Raheb v. Lemenski, 115 R.I. 576, 350 A.2d 397 (1976). After careful review of the record, however, we conclude that the trial justice’s findings and conclusions must be reversed.

Assuming for the purpose of this discussion that Plantations in legal effect made a promise to Hayes, we must ask whether Hayes did supply the required consideration that would make the promise binding? And, if Hayes did not supply consideration, was his alleged reliance sufficiently induced by the promise to estop defendant from denying its obligation to him? We answer both questions in the negative.

We turn first to the problem of consideration. The facts at bar do not present the case of an express contract. As the trial justice stated, the existence of a contract in this case must be determined from all the circumstances of the parties’ conduct and words. Although words were expressed initially in the remark that Hayes “would be taken care of,” any contract in this case would be more in the nature of an implied contract. Certainly the statement of Hugo Mainelli, Jr., standing alone is not an expression of a direct and definite promise to pay Hayes a pension. Though we are analyzing an implied contract, nevertheless we must address the question of consideration.

Contracts implied in fact require the element of consideration to support them as is required in express contracts. The only difference between the two is the manner in which the parties manifest their assent. J. Koury Steel Erectors, Inc. v. San-Vel Concrete Corp., R.I., 387 A.2d 694 (1978); Bailey v. West, 105 R.I. 61, 249 A.2d 414 (1969). In this jurisdiction, consideration consists either in some right, interest, or benefit accruing to one party or some forbearance, detriment, or responsibility given, suffered, or undertaken by the other. See Dockery v. Greenfield, 86 R.I. 464, 136 A.2d 682 (1957); Darcey v. Darcey, 29 R.I. 384, 71 A. 595 (1909). Valid consideration furthermore must be bargained for. It must induce the return act or promise. To be valid, therefore, the purported consideration must not have been delivered before a promise is executed, that is, given without reference to the promise. Plowman v. Indian Refining Co., 20 F.Supp. 1 (E.D.Ill.1937). Consideration is therefore a test of the enforceability of executory promises, Angel v. Murray, 113 R.I. 482, 322 A.2d 630 (1974), and has no legal effect when rendered in the past and apart from an alleged exchange in the present. Zanturjian v. Boornazian, 25 R.I. 151, 55 A. 199 (1903).

In the case before us, Plantations’s promise to pay Hayes a pension is quite clearly not supported by any consideration supplied by Hayes. Hayes had announced his intent to retire well in advance of any promise, and therefore the intention to *1095retire was arrived at without regard to any promise by Plantations. Although Hayes may have had in mind the receipt of a pension when he first informed Plantations, his expectation was not based on any statement made to him or on any conduct of the company officer relative to him in January 1972. In deciding to retire, Hayes acted on his own initiative. Hayes’s long years of dedicated service also is legally insufficient because his service too was rendered without being induced by Plantations’s promise. See Plowman v. Indian Refining Co., supra.

Clearly then this is not a case in which Plantations’s promise was meant to induce Hayes to refrain from retiring when he could have chosen to do so in return for further service. 1 Williston on Contracts, § 130B (3d ed., Jaeger 1957). Nor was the promise made to encourage long service from the start of his employment. Weesner v. Electric Power Board of Chattanooga, 48 Tenn.App. 178, 344 S.W.2d 766 (1961). Instead, the testimony establishes that Plantations’s promise was intended “as a token of appreciation for [Hayes’s] many years of service.” As such it was in the nature of a gratuity paid to Hayes for as long as the company chose. In Spickelmier Industries, Inc. v. Passander, 172 Ind.App. 49, 359 N.E.2d 563 (1977), an employer’s promise to an employee to pay him a year-end bonus was unenforceable because it was made after the employee had performed his contractual responsibilities for that year.

The plaintiff’s most relevant citations are still inapposite to the present case. Bredemann v. Vaughan Mfg. Co., 40 Ill.App.2d 232, 188 N.E.2d 746 (1963), presents similar yet distinguishable facts. There, the appellate court reversed a summary judgment granted to the defendant employer, stating that a genuine issue of material fact existed regarding whether the plaintiff’s retirement was in consideration of her employer’s promise to pay her a lifetime pension. As in the present case, the employer made the promise one week prior to the employee’s retirement, and in almost the same words. However, Bredemann is distinguishable because the court characterized that promise as a concrete offer to pay if she would retire immediately. In fact, the defendant wanted her to retire. Id. 188 N.E.2d at 749. On the contrary, Plantations in this case did not actively seek Hayes’s retirement. DiMartino, one of Plantations’s founders, testified that he did not want Hayes to retire. Unlike Bredemann, here Hayes announced his unsolicited intent to retire.

Hayes also argues that the work he performed during the week between the promise and the date of his retirement constituted sufficient consideration to support the promise. He relies on Ulmann v. Sunset-McKee Co., 221 F.2d 128 (9th Cir. 1955), in which the court ruled that work performed during the one-week period of the employee’s notice of impending retirement constituted consideration for the employer’s offer of a pension that the employee had solicited some months previously. But there the court stated that its prime reason for upholding the agreement was that sufficient consideration existed in the employee’s consent not to compete with his employer. These circumstances do not appear in our case. Hayes left his employment because he no longer desired to work. He was not contemplating other job offers or considering going into competition with Plantations. Although Plantations did not want Hayes to leave, it did not try to deter him, nor did it seek to prevent Hayes from engaging in other activity.

Hayes argues in the alternative that even if Plantations’s promise was not the product of an exchange, its duty is grounded properly in the theory of promissory estoppel. This court adopted the theory of promissory estoppel in East Providence Credit Union v. Geremia, 103 R.I. 597, 601, 239 A.2d 725, 727 (1968) (quoting 1 Restatement Contracts § 90 at 110 (1932)) stating:

“A promise which the promisor should reasonably expect to induce action or forbearance of a definite and substantial character on the part of the promisee and which does induce such action or forbear-*1096anee is binding if injustice can be avoided only by enforcement of its promise.”

In East Providence Credit Union this court said that the doctrine of promissory estoppel is invoked “as a substitute for a consideration, rendering a gratuitous promise enforceable as a contract.” Id. To restate the matter differently, “the acts of reliance by the promisee to his detriment [provide] a substitute for consideration.” Id.

Hayes urges that in the absence of a bargained-for promise the facts require application of the doctrine of promissory es-toppel. He stresses that he retired voluntarily while expecting to receive a pension. He would not have otherwise retired. Nor did he seek other employment.

We disagree with this contention largely for the reasons already stated. One of the essential elements of the doctrine of promissory estoppel is that the promise must induce the promisee’s action or forbearance. The particular act in this regard is plaintiff’s decision whether or not to retire. As we stated earlier, the record indicates that he made the decision on his own initiative. In other words, the conversation between Hayes and Mainelli which occurred a week before Hayes left his employment cannot be said to have induced his decision to leave. He had reached that decision long before.

An example taken from the restatement provides a meaningful contrast:

“2. A promises B to pay him an annuity during B’s life. B thereupon resigns profitable employment, as A expected that he might. B receives the annuity for some years, in the meantime becoming disqualified from again obtaining good employment. A’s promise is binding.” (Emphasis added.) 1 Restatement Contracts § 90 at 111 (1932).

In Feinberg v. Pfeiffer Co., 322 S.W.2d 163 (Mo.App.1959), the plaintiff-employee had worked for her employer for nearly forty years. The defendant corporation’s board of directors resolved, in view of her long years of service, to obligate itself to pay “retirement privileges” to her. The resolution did not require the plaintiff to retire. Instead, the decision whether and when to retire remained entirely her own. The board then informed her of its resolution. The plaintiff worked for eighteen months more before retiring. She sued the corporation when it reduced her monthly checks seven years later. The court held that a pension contract existed between the parties. Although continued employment was not a consideration to her receipt of retirement benefits, the court found sufficient reliance on the part of the plaintiff to support her claim. The court based its decision upon the above restatement example, that is, the defendant informed the plaintiff of its plan, and the plaintiff in reliance thereon, retired. Feinberg presents factors that also appear in the case at bar. There, the plaintiff had worked many years and desired to retire; she would not have left had she not been able to rely on a pension; and once retired, she sought no other employment.

However, the important distinction between Feinberg and the case before us is that in Feinberg the employer’s decision definitely shaped the thinking of the plaintiff. In this case the promise did not. It is not reasonable to infer from the facts that Hugo R. Mainelli, Jr., expected retirement to result from his conversation with Hayes. Hayes had given notice of his intention seven months previously. Here there was thus no inducement to retire which would satisfy the demands of § 90 of the restatement. Nor can it be said that Hayes’s refraining from other employment was “action or forbearance of a definite and substantial character.” The underlying assumption of Hayes’s initial decision to retire was that upon leaving the defendant’s employ, he would no longer work. It is impossible to say that he changed his position any more so because of what Mainelli had told him in light of his own initial decision. These circumstances do not lead to a conclusion that injustice can be avoided only by enforcement of Plantations’s promise. *1097Hayes received $20,000 over the course of four years. He inquired each year about whether he could expect a check for the following year. Obviously, there was no absolute certainty on his part that the pension would continue. Furthermore, in the face of his uncertainty, the mere fact that payment for several years did occur is insufficient by itself to meet the requirements of reliance under the doctrine of promissory estoppel.

For the foregoing reasons, the defendant’s appeal is sustained and the judgment of the Superior Court is reversed. The papers of the case are remanded to the Superior Court.

JUSTICE HEIPLE

delivered the opinion of the court:

This is a suit for declaratory judgment. It arose out of an agreement between the widow of the widely published author, John Cheever, and Academy Chicago Publishers. Contact between the parties began in 1987 when the publisher approached Mrs. Cheever about the possibility of publishing a collection of Mr. Cheever’s short stories which, though previously published, had never been collected into a single anthology. In August *27of that year, a publishing agreement was signed which provided, in pertinent part:

“Agreement made this 15th day of August 1987, between Academy Chicago Publishers or any affiliated entity or imprint (hereinafter referred to as the Publisher) and Mary W. Cheever and Franklin H. Dennis of the USA (hereinafter referred to as Author).

Whereas the parties are desirous of publishing and having published a certain work or works, tentatively titled The Uncollected Stories of John Cheever (hereinafter referred to as the Work):

* * *

2. The Author will deliver to the Publisher on a mutually agreeable date one copy of the manuscript of the Work as finally arranged by the editor and satisfactory to the Publisher in form and content.

* * *

5. Within a reasonable time and a mutually agreeable date after delivery of the final revised manuscript, the Publisher will publish the Work at its own expense, in such style and manner and at such price as it deems best, and will keep the Work in print as long as it deems it expedient; but it will not be responsible for delays caused by circumstances beyond its control.”

Academy and its editor, Franklin Dennis, assumed the task of locating and procuring the uncollected stories and delivering them to Mrs. Cheever. Mrs. Cheever and Mr. Dennis received partial advances for manuscript preparation. By the end of 1987, Academy had located and delivered more than 60 uncollected stories to Mrs. Cheever. Shortly thereafter, Mrs. Cheever informed Academy in writing that she objected to the publication of the book and attempted to return her advance.

Academy filed suit in the circuit court of Cook County in February 1988, seeking a declaratory judgment: (1) granting Academy the exclusive right to pub*28lish the tentatively titled, “The Uncollected Stories of John Cheever”; (2) designating Franklin Dennis as the book’s editor; and (3) obligating Mrs. Cheever to deliver the manuscript from which the work was to be published. The trial court entered an order declaring, inter alia: (1) that the publishing agreement executed by the parties was valid and enforceable; (2) that Mrs. Cheever was entitled to select the short stories to be included in the manuscript for publication; (3) that Mrs. Cheever would comply with her obligations of good faith and fair dealing if she delivered a manuscript including at least 10 to 15 stories totaling at least 140 pages; (4) Academy controlled the design and format of the work to be published, but control must be exercised in cooperation with Mrs. Cheever.

Academy appealed the trial court’s order, challenging particularly the declaration regarding the minimum story and page numbers for Mrs. Cheever’s compliance with the publishing agreement, and the declaration that Academy must consult with defendant on all matters of publication of the manuscript.

The appellate court affirmed the decision of the trial court with respect to the validity and enforceability of the publishing agreement and the minimum story and page number requirements for Mrs. Cheever’s compliance with same. The appellate court reversed the trial court’s declaration regarding control of publication, stating that the trial court erred in considering extrinsic evidence to interpret the agreement regarding control of the publication, given the explicit language of the agreement granting exclusive control to Academy. (200 Ill. App. 3d 677.) Appeal is taken in this court pursuant to Supreme Court Rule 315(a) (134 Ill. 2d R. 315(a)).

The parties raise several issues on appeal; this matter, however, is one of contract and we confine our dis*29cussion to the issue of the validity and enforceability of the publishing agreement.

While the trial court and the appellate court agreed that the publishing agreement constitutes a valid and enforceable contract, we cannot concur. The principles of contract state that in order for a valid contract to be formed, an “offer must be so definite as to its material terms or require such definite terms in the acceptance that the promises and performances to be rendered by each party are reasonably certain.” (1 Williston, Contracts §§38 through 48 (3d ed. 1957); 1 Corbin, Contracts §§95 through 100 (1963).) Although the parties may have had and manifested the intent to make a contract, if the content of their agreement is unduly uncertain and indefinite no contract is formed. 1 Williston §37; 1 Corbin §95.

The pertinent language of this agreement lacks the definite and certain essential terms required for the formation of an enforceable contract. (Midland Hotel Corp. v. Reuben H. Donnelley Corp. (1987), 118 Ill. 2d 306.) A contract “is sufficiently definite and certain to be enforceable if the court is enabled from the terms and provisions thereof, under proper rules of construction and applicable principles of equity, to ascertain what the parties have agreed to do.” (Morey v. Hoffman (1957), 12 Ill. 2d 125.) The provisions of the subject publishing agreement do not provide the court with a means of determining the intent of the parties.

Trial testimony reveals that a major source of controversy between the parties is the length and content of the proposed book. The agreement sheds no light on the minimum or maximum number of stories or pages necessary for publication of the collection, nor is there any implicit language from which we can glean the intentions of the parties with respect to this essential contract term. The publishing agreement is similarly si*30lent with respect to who will decide which stories will be included in the collection. Other omissions, ambiguities, unresolved essential terms and illusory terms are: No date certain for delivery of the manuscript. No definition of the criteria which would render the manuscript satisfactory to the publisher either as to form or content. No date certain as to when publication will occur. No certainty as to style or manner in which the book will be published nor is there any indication as to the price at which such book will be sold, or the length of time publication shall continue, all of which terms are left to the sole discretion of the publisher.

A contract may be enforced even though some contract terms may be missing or left to be agreed upon, but if the essential terms are so uncertain that there is no basis for deciding whether the agreement has been kept or broken, there is no contract. (Champaign National Bank v. Landers Seed Co. (1988), 165 Ill. App. 3d 1090; Restatement (Second) of Contracts §33 (1981).) Without setting forth adequate terms for compliance, the publishing agreement provides no basis for determining when breach has occurred, and, therefore, is not a valid and enforceable contract.

An enforceable contract must include a meeting of the minds or mutual assent as to the terms of the contract. (Midland Hotel, 118 Ill. 2d at 313.) It is not compelling that the parties share a subjective understanding as to the terms of the contract; the parties’ conduct may indicate an agreement to the terms of same. (Steinberg v. Chicago Medical School (1977), 69 Ill. 2d 320.) In the instant case, however, no mutual assent has been illustrated. The parties did not and do not share a common understanding of the essential terms of the publishing agreement.

In rendering its judgment, the trial court supplied minimum terms for Mrs. Cheever’s compliance, includ*31ing story and page numbers. It is not uncommon for a court to supply a missing material term, as the reasonable conclusion often is that the parties intended that the term be supplied by implication. However, where the subject matter of the contract has not been decided upon and there is no standard available for reasonable implication, courts ordinarily refuse to supply the missing term. (1 Williston §42; 1 Corbin §100.) No suitable standard was available for the trial court to apply. It is our opinion that the trial court incorrectly supplied minimum compliance terms to the publishing agreement, as the agreement did not constitute a valid and enforceable contract to begin with. As noted above, the publishing agreement contains major unresolved uncertainties. It is not the role of the court to rewrite the contract and spell out essential elements not included therein.

In light of our decision that there was no valid and enforceable contract between the parties, we need not address other issues raised on appeal. For the foregoing reasons, the decisions of the trial and appellate courts in this declaratory judgment action are reversed.

Reversed.

JUSTICES CLARK and FREEMAN took no part in the consideration or decision of this opinion.

Chase, J.

This is ah action brought for an alleged wrongful dischaz'ge of an employee. The defendant is an *225architect employing engineers, draftsmen and other assistants. The plaintiff is an architect and draftsman. In October, 1910, he applied to the defendant for employment and when asked what wages he wanted, replied that he would start for $40 per week. He was employed at $35 per week. A short time thereafter he informed the defendant that he had another position offered to him and the defendant said that if he would remain with him and help him through the work in his office he thought he could offer him a better future than anybody else. He continued in the employ of the defendant and became acquainted with a designer in the office and said designer and the plaintiff from time to time prior to the 1st of February, 1911, talked with the defendant about the work in his office. On that day by arrangement the two remained with the defendant after the regular office hours and the defendant said: “ I am going to give you $5 more a week; if you boys will go on and continue the way you have been and get me out of this trouble and get these jobs started that were in the office three years, on the first of next January I will close my books and give you a fair share of my profits. That was the result of the conversation. That was all of that conversation.” The plaintiff was given charge of the drafting. Thereafter suggestions were made by the plaintiff and said designer about discharging many of the defendant’s employees and employing new men and such suggestions were carried out and the two worked in the defendant’s office over time and many Sundays and holidays. At least one piece of work that the defendant said had been in his office' for three years was completed. The plaintiff on his cross-examination told the story of the employment of himself and said designer as follows: “And he says at that time ‘ I am going to give you $5 more a week starting this week.’ This was about Thursday. He says ‘You boys go on and continue the work you are doing and the first of January next year I will close my books and give *226you a fair share of my profits.’ Those were his exact words.”

Thereafter the plaintiff was paid $40 a week. On November 6,1911, the night before the general election in this state, the defendant requested that all of his employees that could do so, should work on election day. The plaintiff told the defendant that he wanted to remain at home to attend an election in the village where he lived. About four o’clock in the afternoon of election day he was taken ill and remained at his house ill until a time that as nearly as can be stated from the evidence was subsequent to December 1, 1911.' On Saturday, November 11, the defendant caused to be delivered to the plaintiff a letter in which he said:

“lam sending you herewith your pay for one day’s work of seven hours, performed on Monday, the 6th inst. On Monday night, I made it my special duty to inform you that the office would be open all day Election Day and that I expected you and all the men to report for work. Much to my surprise and indignation, on Tuesday you made no appearance and all the men remained away, in obedience of your instructions to them of the previous evening. An act of this kind I consider one of extreme disloyalty and insubordination and I therefore am obliged to dispense with your services.”

After the plaintiff had recovered from his illness and was able to do so he went to the defendant’s office (the date does not appear) arid told him that he was ready, willing and able to continue his services under the agreement. The defendant denied that he had any agreement with him and refused to permit him to continue in his service. Thereafter and prior to January 1, 1912, the plaintiff received for special work about $50.

The plaintiff seeks to recover in this action for services from November 7, 1911, to December 31, 1911, inclusive,at $40 per week and for a fair and reasonable percentage of the net profits of the defendant’s business from Eeb*227ruary 1,1911, to January 1, 1912, and demands judgment for $1,680.

At the trial he was the only witness sworn as to the alleged contract and at the close of his case the complaint was dismissed.

The statement alleged to have been made by the defendant about giving the plaintiff and said designer a fair share of his profits is vague, indefinite and uncertain and the amount cannot be computed from anything that was said by the parties or by reference to any document, paper or other transaction. The minds of the parties never met upon any particular share of the defendant’s profits to be given the employees or upon any plan by which such share could be computed or determined. The contract so far as it related to the special promise or inducement was never consummated. It was left subject to the will of the defendant or for further negotiation. It is urged that the defendant by the use of the word “ fair ” in referring to a share of his profits, was as certain and definite as people are in the purchase and sale of a chattel when the price is not expressly agreed upon, and that if the agreement in question is declared to be too indefinite and uncertain to be enforced a similar conclusion must be reached in every case where a chattel is sold without expressly fixing the price therefor.

The question whether the words “ fair” and “reasonable ” have a definite and enforceable meaning when used in business transactions is dependent upon the intention of the parties in the use of such words and upon the subject-matter to which they refer. In cases of merchandising and in the purchase and sale of chattels the parties may use the words “fair and reasonable value” as synonymous with “ market value.” A promise to pay the fair market value of goods may be inferred from what is expressly agreed by the parties. The fair, reasonable or market value of goods can be shown by direct testimony of those competent to give such testimony. The *228competency to speak grows out of experience and knowledge. The testimony of such witnesses does not rest upon conjecture. The opinion of this court in United Press v. N. Y. Press Co. (164 N. Y. 406) was not intended to assert that a contract of sale is unenforceable unless the price is expi’essly mentioned and determined.

In the case of a contract for the sale of goods or for hire without a fixed price or consideration being named it will be presumed that a reasonable price or consideration is intended and the person who entez-s into such a contract for goods or service is liable therefor as on an implied contract. Such contracts are common, and when there is nothing therein to limit or prevent an implication as to the price, they are, so far as the terms of the contract are concerned, binding obligations.

The contract in question, so far as it relates to a share of the defendant’s profits, is not only uncertain but it is necessarily affected by so many other facts that are in themselves indefinite and uncertain that the intention of the parties is pure conjecture. A fair share of the defendant’s profits may be any amount from a nominal sum to a material part according to the particular views of the person whose guess is considered. Such an executory contract must rest for performance upon the honor and good faith of the parties making it. The courts cannot aid parties in such a case when they az*e unable or unwilling to agree upon the terms of their own proposed contract.

It is elementary in the law that, for the validity of a contract, the promise, or the agreement, of the parties to it must be certain and explicit and that their full intention may be ascertained to a reasonable degree of certainty. Their agreement must be neither vague nor indefinite, and, if thus defective, parol proof cannot be resorted to. (United Press v. N. Y. Press Co., supra, and cases cited; Ruling Case Law, vol. 6, 644.)

The courts in this state, in reliance upon and approval of the rule as stated in the United Press case, have decided *229many cases involving the same rule. Thus, -in Mackintosh v. Thompson (58 App. Div. 25) and again in Mackintosh v. Kimball (101 App. Div. 494) the plaintiff sought to recover compensation in addition to a stated salary which he had received and which additional amount rested upon a claim by him that while he was employed by the defendants he informed them that he intended to leave their employ unless he was given an increase in salary, and that one of the defendants said to him that they would make it worth his while if he would stay on, and would increase his salary, and that his idea was to give him an interest in the profits on certain buildings that they were then erecting. The plaintiff further alleges that he asked what would be the amount of the increase and was told, “You can depend upon me; I will see that you get a satisfactory amount.” The court held that the arrangement was too indefinite to form the basis of any obligation on the part of the defendants.

In Bluemner v. Garvin (120 App. Div. 29) the plaintiff and defendant were architects, and the plaintiff alleged that he drew plans for a public building in accordance with a contract held by the defendant and pursuant to a special agreement that if the plans were accepted the defendant would give him a fair share of the commissions to be received by him. The court held that a good cause of action was stated on quantum meruit, but that the contract was too vague and indefinite to be enforced.

A similar rule has been adopted in many other states. I mention a few of them. In Fairplay School Township v. O’Neal (127 Ind. 95) a verbal contract between a school trustee and a teacher, in which the latter undertook to teach school for a term in the district, and the trustee promised to pay her '“ good wages,” it was held that the alleged contract was void for uncertainty as to compensation, and that the school township was not liable for its breach.

*230In Dayton v. Stone (111 Mich. 196) the plaintiff had sold to the defendant her stock of goods and fixtures, and by the contract of sale the undamaged goods were to be inventoried and taken at cost price, and the damaged goods at prices to be agreed upon. In an action for breach of contract it was held that the contract was an entire one, and that so far as it left the price of the damaged goods to be fixed and determined it was uncertain and incomplete, and not one which could be enforced against the defendant.

In Wittkowsky v. Wasson (71 N. C. 451) it was held that where the price of certain property was to be fixed by agreement between the parties after the time of the agreement and they did not agree upon the price that the title to the property did not pass.

In Adams v. Adams (26 Ala. 272) a promise by a defendant for a valuable consideration to give his daughter a ‘ ‘ full share of his property ” which then and there was worth $25,000 was held to be too indefinite and uncertain to support an action.

In Van Slyke v. Broadway Ins. Co. (115 Cal. 644) a contract between an insurance agent and the insurance company for a contingent commission of 5% which did not give the facts upon which the contingency depended nor state the sum on which the 5% was to be computed was held unenforceable and also that it could not be aided by parol.

In Marvel v. Standard Oil Co. (169 Mass. 553) a contract by which the defendant agreed to sell the plaintiff its oil on such reasonable terms as to enable him to compete successfully with other parties selling in the same territory was held to be too indefinite and too general to be enforceable as a contract.

In Burks v. Stam (65 Mo. App. 455) a contract for the sale of two race horses for a specified sum and providing for a further payment of a fixed sum by the purchaser if he did well and had no bad luck with the horses was held too vague to admit of enforcement.

*231In Butler v. Kemmerer (218 Pa. St. 242) the plaintiff was in the employ of the defendant at a regular salary and the defendant promised him that if there were any profits in the business he would divide them with the plaintiff “ upon a very liberal basis.” The action was brought to recover a part of the profits of the business and the court held that the contract was never made complete and that there was no standard by which to measure the degree of liberality with which the defendant should regard the plaintiff.

The only cases called to our attention that tend to sustain the appellant’s position are Noble v. Joseph Burnett Co. (208 Mass. 75) and Silver v. Graves (210 Mass. 26). The first at least of such cases is distinguishable from the case under consideration, but in any event the decisions therein should not be held sufficient to sustain the plaintiff’s contention in view of the authorities in this state.

The rule stated from the United Press case does not prevent a recovery upon quantum meruit in case one party to an alleged contract has performed in reliance upon the terms thereof, vague, indefinite and uncertain though they are. In such case the law will presume a promise to pay the reasonable value of the services. Judge Gray, who wrote the opinion in the United Press case, said therein: “I entertain no doubt that, where work has been done, or articles have been furnished, a recovery may he based upon quantum meruit, or quantum valebat; but, where a contract is of an executory character and requires performance over a future period of time, as here, and it is silent as to the price which is to he paid to the plaintiff during its term, I do not think that it possesses binding force. As the parties had omitted to make the price a subject of covenant, in the nature of things, it would have to be the subject of future agreement, or stipulation.” (p. 412.)

In Petze v. Morse Dry Dock & Repair Co. (125 App. Div. 267, 270) the court say: “ There is no contract so long *232as any essential element is open to negotiation.” In that case a contract was made by which an employee in addition to certain specified compensation was to receive 5% of the net distributable profits of a business and it was further provided that “the method of accounting to determine the net distributable profits is to be agreed upon later when the company’s accounts have developed for a better understanding.” The parties never agreed as to the method of determining the net profits and the plaintiff was discharged before the expiration of the term. The court in the opinion say that “the plaintiff could recover for w’hat he had done on a quantum meruit, and' the employment must be deemed to have commenced with a full understanding on the part of both parties that that was the situation.” The judgment of the Appellate Division was unanimously affirmed without opinion in this court. (195 N. Y. 584.)

So, in this case, while I do not think that the plaintiff can recover anything as extra work, yet if the work actually performed as stated was worth more than $40 per week, he having performed until November 7, 1910, could, on a proper complaint, recover its value less the amount received. (See Bluemner v. Garvin, supra; S. C., 124 App. Div. 491; King v. Broadhurst, 164 App. Div. 689.)

The plaintiff claims that he at least should have been allowed to go to the jury .on the question as to whether he was entitled to recover at the rate of $40 per week from November 7, 1911, to December 31, 1911, inclusive. He did not perform any services for the defendant from November 6 until some time after December 1st, by reason of his illness. He has not shown just when he offered to return. It appears that between the time when he offered to return and January 1st he received $50 for other services.

The amount that the plaintiff could recover, therefore, if any, based upon the agreement to pay $40 per week *233would be very small; and he did not present to the court facts from which it could be computed. His employment by the defendant was conditional upon his continuing the way he had been working, getting the defendant out of his trouble and getting certain unenumerated jobs that were in the office three years, started. There was nothing in the contract specifying the length of service except as stated. It was not an unqualified agreement to continue the plaintiff in his service until the first of January, and it does not appear whether or not the special conditions upon which the contract was made had been performed. Even apart from the question whether the plaintiff’s absence from the defendant’s office by reason of his illness would permit the defendant to refuse to take him back into his employ, I do not think that on the testimony as it appears before us it was error to refuse to leave to the jury the question whether the plaintiff was entitled to recover anything at the rate of $40 per week.

The judgment should be affirmed, with costs.

Cardozo, J. (dissenting).

I do not think it is true that a promise to pay an employee a fair share of the profits in addition to his salary is always and of necessity too vague to be enforced (Noble v. Joseph Burnett Co., 208 Mass. 75; Silver v. Graves, 210 Mass. 26; Brennan v. Employers Liability Assurance Corp., Ltd., 213 Mass. 365; Joy v. St. Louis, 138 U. S. 1, 43). The promise must, of course, appear to have been made with contractual intent (Henderson Bridge Co. v. McGrath, 134 U. S. 260, 275). But if that intent is present, it cannot be said from the mere form of the promise that the estimate of the reward is inherently impossible. The data essential to measurement may be lacking in the particular instance, and yet they may conceivably be supplied. It is possible, for example, that in some occupations an employee would be. able to prove a percentage regulated by custom. The difficulty in this case is *234not so much in the contract as in the evidence. Even if the data required for computation might conceivably have been supplied, the plaintiff did not supply them. He would not have supplied them if all the evidence which he offered, and which the court excluded, had been received. He has not failed because the nature of the contract is such that damages are of necessity incapable of proof. He has failed because he did not prove them.

There is nothing inconsistent with this view in United Press v. N. Y. Press Co. (164 N. Y. 406). The case is often cited as authority for the proposition that an agreement to buy merchandise at a fair and reasonable price is so indefinite that an action may not be maintained for its breach in so far as it is still executory. Nothing of the kind was decided, or with reason could have been. What the court did was to construe a particular agreement, and to hold that the parties intended to reserve the price for future adjustment. If instead of reserving the price for future adjustment, they had manifested an intent on the one hand to pay and on the other to accept a fair price, the case is far from holding that a jury could not determine what such a price would be and assess the damages accordingly. Such an intent, moreover, might be manifested not only through express words, but also through reasonable implication. It was because there was neither an express statement nor a reasonable implication of such an intent that the court held the agreement void to the extent that it had not been executed.

On the ground that the plaintiff failed to supply the data essential to computation, I concur in the conclusion that profits were not to be included' as an element of damage. I do not concur, however, in the conclusion that he failed to make out a case of damage to the extent of his loss of salary. The amount may be small, but none the less it belongs to him. The hiring was not at will (Watson v. Gugino, 204 N. Y. 535; Martin v. N. Y. Life Ins. Co., *235148 N. Y. 117). The plain implication was that it should continue until the end of the year when the hooks were to he closed. The evidence would permit the jury to find that the plaintiff was discharged without cause, and he is entitled to damages measured by his salary for the unexpired term.

The judgment should be reversed and a new trial granted, with costs to abide the event.

Collin, Cuddeback and Pound, JJ., concur with Chase, J.; Cardozo, J., reads dissenting opinion, and Willard Bartlett, Ch. J., and Hogan, J., concur.

Judgment affirmed.

BARNARD, P. J.

This is an action for specific performance or for damages in the event specific performance was impossible.

The complaint alleged that on April 15, 1952, the parties entered into a contract whereby the defendant agreed to sell, and plaintiff agreed to buy a 40-acre tract of land for $2,500; that this was a fair, just and reasonable value of the property; that on April'28, 1952, the defendant repudiated the contract and refused to deliver a deed; that on April 28, 1952, the property was worth $6,081; and that plaintiff has been damaged in the amount of $3,581. The answer denied that any contract had been entered into, or that anything was due to the plaintiff.

By stipulation, the issue of whether or not a contract was entered into between the parties was first tried, reserving the other issues for a further trial if that became necessary. The issue as to the existence of a contract was submitted upon an agreed statement, including certain letters between the parties, without the introduction of other evidence.

The stipulated facts are as follows: During March, 1952, the defendant placed an ad in a Los Angeles paper reading, so far as material here, “Joshua Tree vie. 40 acres, . . . need cash, will sacrifice.” In response to an inquiry resulting from this ad the defendant, who lived in New York, wrote a letter to the plaintiff dated March 26, briefly describing the property, giving directions as to how to get there, stating that his rock-bottom price was $2,500 cash, and further stating that “This is a form letter.” On April 7, the plaintiff wrote a letter to the defendant saying that he was not sure he had found the property, asking for its legal description, asking whether the land was all level or whether it included *181certain jutting rock hills, and suggesting a certain hank as escrow agent “should I desire to purchase the land.” On April 8, the defendant wrote to the plaintiff saying “From your description you have found the property”; that this bank “is O.K. for escrow agent”; that the land was fairly level; giving the legal description; and then saying, “If you are really interested, you will have to decide fast, as I expect to have a buyer in the next week or so.” On April 12, the defendant sold the property to a third party for $2,500. The plaintiff received defendant’s letter of April 8 on April 14. On April 15 he wrote to the defendant thanking him for his letter “confirming that I was on the right land,” stating that he would immediately proceed to have the escrow opened and would deposit $2,500 therein “in conformity with your offer,” and asking the defendant to forward a deed with his instructions to the escrow agent. On April 17, 1952, the plaintiff started an escrow and placed in the hands of the escrow agent $100, agreeing to furnish an additional $2,400 at an unspecified time, with the provision that if the escrow was not closed by May 15, 1952, it should be completed as soon thereafter as possible unless a written demand for a return of the money or instruments was made by either party after that date. It was further stipulated that the plaintiff was ready and willing at all times to deposit the $2,400.

The matter was submitted on June 11, 1953. On July 10, 1953, the judge filed a memorandum opinion stating that it was his opinion that the letter of April 8, 1952, when considered with the previous correspondence, constituted an offer of sale which offer was, however, qualified and conditioned upon prompt acceptance by the plaintiff; that in spite of the condition thus imposed, the plaintiff delayed more than a week before notifying the defendant of his acceptance; and that since the plaintiff was aware of the necessity of promptly communicating his acceptance to the defendant his delay was not the prompt action required by the terms of the offer. Findings of fact were filed on October 2, 1953, .finding that each and all of the statements in the agreed statement are true, and that all allegations to the contrary in the complaint are untrue. As conclusions of law, it was found that the plaintiff and defendant did not enter into a contract as alleged in the complaint or otherwise, and that the defendant is entitled to judgment against the plaintiff. Judgment was entered accordingly, from which the plaintiff has appealed.

*182The appellant contends that the judgment is contrary to the evidence and to the law since the facts, as found, do not support the conclusions of law upon which the judgment is based. It is argued that there is no conflict in the evidence, and this court is not bound by the trial court’s construction of .the written instruments involved; that the evidence conclusively shows that an offer was made to the plaintiff by the defendant, which offer was accepted by the mailing of plaintiff’s letter of April 15; that upon receipt of defendant’s letter of April 8 the plaintiff had a reasonable time within which to accept the offer that had been made; that by his letter of April 15 and his starting of an escrow the plaintiff accepted said offer; and that the agreed statement of facts establishes that a valid contract was entered into between the parties. In his briefs the appellant assumes that an offer was made by the defendant, and confined his argument to contending that the evidence shows that he accepted that offer within a reasonable time.

There can be no contract unless the minds of the parties have met and mutually agreed upon some specific thing. This is usually evidenced by one party making an offer which is accepted by the other party. Section 25 of the Restatement of the Law on Contracts reads:.

“If from a promise, or manifestation of intention, or from the circumstances existing at the time, the person to whom the promise or manifestation is addressed knows or has reason to know that the person making it does not intend it as an expression of his fixed purpose until he has given a further expression of assent, he has not made an offer.”

The language used in Niles v. Hancock, 140 Cal. 157 [73 P. 840], “ It is also clear from the correspondence that it was the intention of the defendant that the negotiations between him and the plaintiff were purely preliminary,” is applicable here. The correspondence here indicates an intention on the part of the defendant to find out whether the plaintiff was interested, rather than an intention to make a definite offer to the plaintiff. The language used by the defendant in his letters of March 26 and April 8 rather clearly discloses that they were not intended as an expression of fixed purpose to make a definite offer, and was sufficient to advise the plaintiff that some further expression of assent on the part of the defendant was necessary.

The advertisement in the paper was a mere request for an offer. The letter of March 26 contains no definite offer, and *183clearly states that it is a form letter. It merely gives further particulars, in clarification of the advertisement, and tells the plaintiff how to locate the property if he was interested in looking into the matter. The letter of April 8 added nothing in the way of a definite offer. It merely answered some questions asked by the plaintiff, and stated that if the plaintiff was really interested he would have to act fast. The statement that he expected to have a buyer in the next week or so indicated that the defendant intended to sell to the first-comer, and was reserving the right to do so. From this statement, alone, the plaintiff knew or should have known that he was not being given time in which to accept an offer that was being made, but that some further assent on the part of the defendant was required. Under the language used the plaintiff was not being given a right to act within a reasonable time after receiving the letter; he was plainly told that the defendant intended to sell to another, if possible, and warned that he would have to act fast if he was interested in buying the land.

Regardless of any opinion previously expressed, the court found that no contract had been entered into between these parties, and we are in accord with the court’s conclusion on that controlling issue. The court’s construction of the letters involved was a reasonable one, and we think the most reasonable one, even if it be assumed that another construction was possible.

The judgment is affirmed.

Griffin, J., and Mussell, J., concurred.

A petition for a rehearing was denied December 13, 1954, and appellant’s petition for a hearing by the Supreme Court was denied January 19, 1955.

PRESIDING JUSTICE LINDBERG

delivered the opinion of the court:

Plaintiff, La Salle National Bank, as trustee under Trust No. 109529, appeals from two June 22, 1987, orders of the circuit court of Du Page County. The first order granted the motion of counterplaintiff, Jerold A. Borg (Borg), for partial summary judgment. It also entered judgment on plaintiff’s first amended complaint in favor of defendants, Paul Vega (Paul), as trustee under the Mel Vega Trust; Paul Vega, as independent administrator of the decedent’s estate of Mel Vega (Mel); and Richard Vega (Richard), as trustee under the Marie Vega Trust. The second order denied plaintiff’s petition for rehearing and dismissed both counts of plaintiff’s first amended complaint (without vacating the portion of the first order entering judgment for defendants on both counts of the same first amended complaint).

Plaintiff’s first amended complaint alleged the existence of a contract for the sale of real estate between it and Mel and sought specific performance of the alleged contract and damages from defendants for willfully and intentionally breaching it. Borg was permitted to intervene and filed a counterclaim naming plaintiff and defendants as counterdefendants. As finally amended, the counterclaim sought specific performance of a different contract for sale of the same real estate to Borg; a judgment declaring the alleged contract between Mel and plaintiff void and holding it for naught; and, if the alleged contract with plaintiff was “held to be a valid and enforceable contract,” damages from defendants for fraud for failure to disclose the contract with plaintiff to Borg.

Borg moved for partial summary judgment (Ill. Rev. Stat. 1985, *157ch. 110, par. 2 — 1005(d)) requesting a determination by the court that the alleged contract between plaintiff and Mel was unenforceable because it was not “signed in accordance with its terms and provisions” and because plaintiff abandoned it. The trial court granted partial summary judgment on the basis of the first ground argued by Borg.

In its verified first amended complaint, plaintiff alleged, inter alia:

“The Defendant, MEL VEGA, on March 12, 1985, in his own behalf and in behalf of all the owners of record, entered into a Real Estate Sale Contract (herein ‘Contract’) with the Plaintiff, a true and correct copy of said Contract is attached hereto and incorporated herein as Exhibit A.”

Exhibit A is a document, drafted by counsel for plaintiff, entitled “Real Estate Sale Contract.” On the first page of this document appears the date March 12, 1985, and the statement that “Attached Rider is part of this Contract.” One of the Rider’s provisions states:

“This contract has been executed and presented by an authorized agent for the purchaser, the beneficiaries of the La Salle National Bank, under Trust No. 109529, as Trustee aforesaid for the benefit of the Trust only and not personally. Upon execution of this contract by the Seller, this contract shall be presented to the trust for full execution. Upon the trust’s execution, this contract will then be in full force and a copy of a fully executed contract along with evidence of the earnest money deposit will be delivered back to Seller.”

The document was signed by Bernard Ruekberg as the purchaser’s purchasing agent and by Mel Vega (on March 19, 1985, according to the date by his signature on the Rider) as the seller but not by the trustee for the purchaser.

James Clark, an assistant vice-president in plaintiff trustee’s land trust department, gave a deposition. Clark testified that there was no copy of the March 1985 contract in the relevant land trust file. Moreover, the real estate record kept by the department, which was intended to be a complete record of every document executed by the trustee (except for check endorsements), did not contain any notation of the presentation to, or the execution by, the trustee of the March 1985 contract. The trust in question was one for the Alter Group, and Clark estimated that there were 125 open trust files for the Alter Group at that time. It was conceivable that the March 1985 document had been executed and misfiled. However, counsel for plaintiff had never requested that Clark search other trust files for an executed copy of the document and had never suggested that a contract was *158missing from the file. On Borg’s counsel’s request, Clark had searched the trust department for any missing document and was unable to locate any missing contract.

Realtor Phil Bowers testified in his deposition that he had a notation that he had gone back to Mel on March 26, 1985. Bowers believed that he had then delivered to Mel an executed trust copy of the March 1985 document. However, Bowers did not have a copy of that executed document and, in fact, neither plaintiff nor any of the other deposed witnesses produced a copy of that executed document.

The trial court found, inter alia:

“1. That the alleged ‘Contract’ which forms the basis of the claim of Plaintiff *** is identified as Exhibit ‘A’ of its First Amended Complaint.

2. That the [document] contains language which provides in pertinent part ***:

‘Upon execution of this Contract by the Seller, this Contract shall be presented to the trust for full execution. Upon the trust’s execution, this Contract will then be in full force and a copy of a fully executed Contract along with evidence of the earnest money deposit will be delivered back to Seller.’

3. That the aforesaid language is, on its own face, clear and unambiguous.

4. That the only reasonable inference to be drawn from the aforesaid language is that in the event that the Contract is not signed by the Trustee, it never will come into full force.

5. That the alleged ‘Contract’ identified as Exhibit ‘A’ to Plaintiff’s First Amended Complaint was not signed by the Trust.

6. That because the aforesaid language contained in Exhibit ‘A’ to Plaintiff’s First Amended Complaint requires the signature of the Trust for the ‘Contract’ to be in full force and because the ‘Contract’'was not signed by the Trust, therefore, no Contract was ever formed between Mel Vega and Plaintiff *** if

The court accordingly granted partial summary judgment for Borg and entered judgment in favor of defendants on plaintiff’s complaint.

The parties’ statements of the issues are not very informative. It suffices here to note that they make arguments concerning whether there was a genuine issue as to a material fact in essentially two respects: (1) whether a contract between plaintiff and Mel was ever formed and (2) whether, if a contract was formed, it was nonetheless unenforceable. We believe that the trial court correctly held *159that there was no genuine issue as to any material fact that no contract was ever formed between plaintiff and Mel. The arguments concerning whether, if a contract was formed, it was unenforceable because of the Statute of Frauds and because it was abandoned by plaintiff therefore need not be addressed.

Summary judgment may be granted only when no genuine issue of material fact exists. (Komater v. Kenton Court Associates (1986), 151 Ill. App. 3d 632, 636, 502 N.E .2d 1295, 1297.) Whether there is a genuine issue of material fact is determined from the pleadings, depositions, affidavits, and admissions on file in a case. (Komater v. Kenton Court Associates (1986), 151 Ill. App. 3d 632, 636, 502 N.E .2d 1295, 1297-98.) Summary judgment should be granted only where, when construed most strongly against the movant, the evidence clearly and with no doubt establishes the movant’s right thereto. (Komater v. Kenton Court Associates (1986), 151 Ill. App. 3d 632, 636, 502 N.E.2d 1295, 1298.) In the case at bar these requirements were satisfied with respect to the issue of whether a contract was formed between plaintiff and Mel.

It has long been settled that a contract is “ ‘an agreement between competent parties, upon a consideration sufficient in law, to do or not to do a particular thing.’ ” (Steinberg v. Chicago Medical School (1977), 69 Ill. 2d 320, 329, 371 N.E.2d 634, 639, quoting People v. Dummer (1916), 274 Ill. 637, 640, 113 N.E. 934, 935.) The formation of a contract requires an offer, an acceptance, and consideration. (Steinberg v. Chicago Medical School (1977), 69 Ill. 2d 320, 329-30, 371 N.E .2d 634, 639; Milanko v. Jensen (1949), 404 Ill. 261, 266-67, 88 N.E.2d 857, 859.) The trial court held that there was no genuine issue of material fact that no contract was formed because the offer was made by Mel, the offer could only be accepted by execution of the document at issue by the trust, and the document was not executed by the trust. Plaintiff argues that the trial court erred because there were genuine issues of material fact regarding whether the document was ever executed by the trust and whether execution of the document by the trust was necessary to the formation of a contract. Plaintiff is incorrect on both of these points.

Plaintiff’s assertion that there was a genuine issue of material fact concerning whether the document was executed by the trust is incorrect for two reasons. The first reason it is incorrect is that plaintiff’s claim is founded upon a written instrument, i.e., the alleged contract between it and Mel. Therefore, as required by the Code of Civil Procedure, plaintiff attached a copy of the document to its complaint as an exhibit. (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 606.) The docu*160ment on which plaintiff has founded its claim is therefore the one attached as an exhibit to its complaint, which was executed by Ruekberg and Mel but not by the trust. If plaintiff were founding its claim upon a written instrument which was executed by the trust, it should have attached to its complaint either a copy of that document as an exhibit or “an affidavit stating facts showing that the instrument is not accessible to [plaintiff].” (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 606.) On the complaint filed, accordingly, there was no issue as to the execution of the document by the trust.

The second reason plaintiff is incorrect about there being a genuine issue as to whether the trust executed the document is that plaintiff’s verified amended complaint states that the exhibit attached is a “true and correct copy” of the written instrument on which the claim of plaintiff is founded. None of the other parties in their pleadings denied that the exhibit was a “true and correct copy” of the instrument, but rather contended that they should prevail for various other reasons. As previously noted, the exhibit showed that the document was executed by Ruekberg and Mel, but did not show execution by the trust. The rule is:

“Once a statement of fact has been admitted in the pleadings, it constitutes a judicial admission and makes it unnecessary for the opposing party to introduce evidence in support thereof. [Citations.] In Precision Extensions, Inc. v. Stewart [(1962), 36 Ill. App. 2d 30,183 N.E.2d 547], the court stated: ‘Judicial admissions are not evidence at all, but are formal admissions in the pleadings, *** which have the effect of withdrawing a fact from issue and dispensing wholly with the need for proof of the fact.’ (36 Ill. App. 2d 30, 50, 183 N.E.2d 547, 556.)

When the admission is made in a verified pleading, it remains binding upon the pleader even after an amendment. [Citations.]” (Farwell Construction Co. v. Ticktin (1978), 59 Ill. App. 3d 954, 958-59, 376 N.E.2d 621, 625.)

In the case at bar, plaintiff judicially admitted that the copy of the document, not executed by the trust, was a true and correct copy of the written instrument on which its claim was founded. This withdrew from issue the question of whether the trust executed the document and dispensed with the need to prove that the trust had not.

Whether a contract was formed without execution of the document by the trust may now be considered. This requires first an analysis of the events which occurred with respect to the document in terms of offer and acceptance.

*161The pertinent provision of the document stated:

“This contract has been executed and presented by an authorized agent for the purchaser, the beneficiaries of the La Salle National Bank, under Trust No. 109529, as Trustee aforesaid for the benefit of the Trust only and not personally. Upon execution of this contract by the Seller, this contract shall be presented to the trust for full execution. Upon the trust’s execution, this contract will then be in full force and a copy of a fully executed contract along with evidence of the earnest money deposit will be delivered back to Seller.”

. Thus, a specific order of events was contemplated, after which the contract would be in full force. Ruekberg (the purchasing agent) was to execute the document and present it to Mel (the seller). Then Mel was to execute it. After Mel executed it, the document was to be presented to the trust for execution. Finally, “upon the trust’s execution,” the contract would be in full force.

An offer is an act on the part of one person giving another person the legal power of creating the obligation called a contract. (McCarty v. Verson Allsteel Press Co. (1980), 89 Ill. App. 3d 498, 507, 411 N.E.2d 936, 942.) Where “the so-called offer is not intended to give the so-called offeree the power to make a contract there is no offer.” (McCarty v. Verson Allsteel Press Co. (1980), 89 Ill. App. 3d 498, 508, 411 N.E.2d 936, 943.) From the provisions contained in the document at bar, particularly the language quoted, it is apparent that there was to be no contract (i.e., the “contract” was not to be in full force) until it was executed by the trust. Thus, Ruekberg’s presentation of the document he had executed to Mel was not an offer because it did not give Mel the power to make a contract by accepting it. On the other hand, when Mel executed the document and gave it back to Ruekberg he made an offer which could be accepted by execution of the document by the trust.

An offeror has complete control over an offer and may condition acceptance to the terms of the offer. (McCarty v. Verson Allsteel Press Co. (1980), 89 Ill. App. 3d 498, 509, 411 N.E.2d 936, 944.) The language of an offer may moreover govern the mode of acceptance required, and, where an offer requires a written acceptance, no other mode may be used. (Zeller v. First National Bank & Trust Co. (1979), 79 Ill. App. 3d 170, 172, 398 N.E.2d 148, 150; Nationwide Commercial Co. v. Knox (1973), 10 Ill. App. 3d 13, 15, 293 N.E.2d 638, 640; Brophy v. City of Joliet (1957), 14 Ill. App. 2d 443, 453-56, 144 N.E.2d 816, 821-23.) In the case at bar, the document at issue stated clearly that the contract would be in full force upon the trust’s execu*162tion. This indicates that the only mode by which Mel’s offer could be accepted was execution of the document by the trust. The trust not having executed the document, there was no acceptance of the offer, and so there was no contract. E.g., Zeller v. First National Bank & Trust Co. (1979), 79 Ill. App. 3d 170, 172, 398 N.E.2d 148, 149 (“It is elementary that for a contract to exist, there must be an offer and acceptance. [Citations.]”); Moore v. Lewis (1977), 51 Ill. App. 3d 388, 392, 366 N.E.2d 594, 599 (“[A]n offer does not ripen into a contract until it is accepted”).

Several contentions of plaintiff remain to be briefly addressed. Plaintiff argues that the beneficiaries to a land trust may contract and bind the trust; that Ruekberg was an agent of the beneficiaries; and that therefore Ruekberg could enter into a contract binding on the trust. Accordingly, the trust’s execution was unnecessary to form a contract, but rather Ruekberg’s execution as agent of the beneficiaries was sufficient. This is incorrect. Assuming arguendo that Ruekberg could enter into contracts which would bind the trust, the document at issue nonetheless could not become a contract on Ruekberg’s and Mel’s execution alone. This is because the document specifically provided that it would not be in force until executed by the trust and so (1) was not an offer until Mel executed it and (2) could only be accepted by execution by the trust.

Plaintiff argues that “[t]here may have been a mistaken understanding of the need for the Trustee’s signature under Illinois law, considering the ability of beneficiaries to bind the Trust.” We do not believe that the document can be so read. Moreover, we do not believe that the document’s language, which appears to have been chosen with care, should be judicially redrafted on the assumption that the parties were mistaken as to the law. See Jursich v. Arlington Heights Federal Savings & Loan Association (1982), 110 Ill. App. 3d 847, 853, 441 N.E.2d 864, 868 (“[T]he erroneous interpretation of a contract constitutes a mistake of law [citation], for which the law affords no remedy. [Citation.]”).

Plaintiff also makes arguments regarding whether the contract was “mutually enforceable” or lacked “mutuality of obligation.” Mutuality of obligation is not at issue in this case, where the document was not a contract because there was no acceptance and not because of a failure of consideration. (S. J. Groves & Sons Co. v. State of Illinois (1982), 93 Ill. 2d 397, 404, 444 N.E.2d 131, 134 (“If the requirement of consideration has been met ‘mutuality of obligation is not essential.’ [Citations.]”), rev’d on other grounds, Rossetti Contracting Co. v. Court of Claims (1985), 109 Ill. 2d 72, 485 N.E.2d *163332.) In connection with its argument on mutuality of obligation, plaintiff cites three cases for the proposition that bringing the action at bar for specific performance bound plaintiff and rendered the “contract” mutual. (Laegeler v. Bartlett (1957), 10 Ill. 2d 478, 140 N.E.2d 702; Ullsperger v. Meyer (1905), 217 Ill. 262, 75 N.E. 482; Cottom v. Kennedy (1986), 140 Ill. App. 3d 290, 488 N.E.2d 682.) None of these cases stand for the proposition that an offer may be accepted by filing suit for specific performance, let alone that an offer requiring some other mode of acceptance may be accepted by filing suit for specific performance. Since the basic defect in plaintiff’s claim that the document was a contract is that there was no acceptance, the cases noted, which do not concern that element of a contract, do not alter the conclusion that there was no contract between plaintiff and Mel.

The judgment of the circuit court of Du Page County is accordingly affirmed.

Affirmed.

INGLIS and NASH, JJ., concur.

KARWACKI, Judge.

In this case we are invited to adapt the “modern” contractual theory of detrimental reliance,1 or promissory estoppel, to the relationship between general contractors and their subcontractors. Although the theory of detrimental reliance is available to general contractors, it is not applicable to the facts of this case. For that reason, and because there was no traditional bilateral contract formed, we shall affirm the trial court.

I

The National Institutes of Health [hereinafter, “NIH”], solicited bids for a renovation project on Building 30 of its Bethesda, Maryland campus. The proposed work entailed some demolition work, but the major component of the job *147was mechanical, including heating, ventilation and air conditioning [“HVAC”]. Pavel Enterprises Incorporated [hereinafter, “PEI”], a general contractor from Vienna, Virginia and appellant in this action, prepared a bid for the NIH work. In preparing its bid, PEI solicited sub-bids from various mechanical subcontractors. The A.S. Johnson Company [hereinafter, “Johnson”], a mechanical subcontractor located in Clinton, Maryland and the appellee here, responded with a written scope of work proposal on July 27, 1993.2 On the morning of August 5, 1993, the day NIH opened the general contractors’ bids, Johnson verbally submitted a quote of $898,000 for the HVAC component.3 Neither party disputes that PEI used Johnson’s sub-bid in computing its own bid. PEI submitted a bid of $1,585,000 for the entire project.

General contractors’ bids were opened on the afternoon of August 5, 1993. PEI’s bid was the second lowest bid. The government subsequently disqualified the apparent low bidder,4 however, and in mid-August, NIH notified PEI that its bid would be accepted.

With the knowledge that PEI was the lowest responsive bidder, Thomas F. Pavel, president of PEI, visited the offices of A.S. Johnson on August 26, 1993, and met with James Kick, Johnson’s chief estimator, to discuss Johnson’s proposed role in the work. Pavel testified at trial to the purpose of the meeting:

*148“I met with Mr. Kick. And the reason for me going to their office was to look at their offices, to see their facility, to basically sit down and talk with them, as I had not done, and my company had not performed business with them on a direct relationship, but we had heard of their reputation. I wanted to go out and see where their facility was, see where they were located, and basically just sit down and talk to them. Because if we were going to use them on a project, I wanted to know who I was dealing with.”

Pavel also asked if Johnson would object to PEI subcontracting directly with Powers for electric controls, rather than the arrangement originally envisioned in which Powers would be Johnson’s subcontractor.5 Johnson did not object.

Following that meeting, PEI sent a fax to all of the mechanical subcontractors from whom it had received sub-bids on the NIH job. The text of that fax is reproduced:

Pavel Enterprises, Inc.

TO: PROSPECTIVE MECHANICAL SUBCONTRACTORS

FROM: ESTIMATING DEPARTMENT REFERENCE: NIH, BLDG 30 RENOVATION

We herewith respectfully request that you review your bid on the above referenced project that was bid on 8/05/93. PEI has been notified that we will be awarded the project as J.J. Kirlin, Inc. [the original low bidder] has been found to be nonresponsive on the solicitation. We anticipate award on or around the first of September and therefor request that you supply the following information.

1. Please break out your cost for the “POWERS” supplied control work as we will be subcontracting directly to “POWERS”.

*1492. Please resubmit your quote deleting the above referenced item.

We ask this in an effort to allow all prospective bidders to compete on an even playing field.

Should you have any questions, please call us immediately as time is of the essence.

On August 30,1993, PEI informed NIH that Johnson was to be the mechanical subcontractor on the job. On September 1, 1993, PEI mailed and faxed a letter to Johnson formally accepting Johnson’s bid. That letter read:

Pavel Enterprises, Inc.

September 1,1993

Mr. James H. Kick, Estimating Mngr.

A.S. Johnson Company

8042 Old Alexandria Ferry Road

Clinton, Maryland 20735

Re: NIH Bldg 30 HVAC Modifications

RC: IFB # 263-93-B (CM)—0422

Subject: Letter of Intent to award Subject: Subcontract

Dear Mr. Kick;

We herewith respectfully inform your office of our intent to award a subcontract for the above referenced project per your quote received on 8/05/93 in the amount of $898,000.00. This subcontract will be forwarded upon receipt of our contract from the NIH, which we expect any day. A preconstruction meeting is currently scheduled at the NIH on 9/08/93 at 10 AM which we have been requested that your firm attend.

As discussed with you, a meeting was held between NIH and PEI wherein PEI confirmed our bid to the government, and designated your firm as our HVAC Mechanical subcontractor. This action was taken after several telephonic and face to face discussions with you regarding the above referenced bid submitted by your firm.

*150We look forward to working with your firm on this contract and hope that this will lead to a long and mutually beneficial relationship.

Sincerely,

/s/ Thomas F. Pavel,

President

Upon receipt of PEI’s fax of September 1, James Kick called and informed PEI that Johnson’s bid contained an error, and as a result the price was too low. According to Kick, Johnson had discovered the mistake earlier, but because Johnson believed that PEI had not been awarded the contract, they did not feel compelled to correct the error. Kick sought to withdraw Johnson’s bid, both over the telephone and by a letter dated September 2,1993:

A.S. Johnson Co.

September 2,1993

PEI Construction

780 West Maples Avenue, Suite 101

Vienna, Virginia 22180

Attention: Thomas Pavel,

Attention: President

Reference: NIH Building 30 HVAC Modifications

Dear Mr. Pavel,

We respectfully inform you of our intention to withdraw our proposal for the above referenced project due to an error in our bid.

As discussed in our telephone conversation and face to face meeting, the management of A.S. Johnson Company was reviewing this proposal, upon which we were to confirm our pricing to you.

Please contact Mr. Harry Kick, General Manager at [telephone number deleted] for any questions you may have. Very truly yours,

/s/ James H. Kick

Estimating Manager

*151PEI responded to both the September 1 phone call, and the September 2 letter, expressing its refusal to permit Johnson to withdraw.

On September 28, 1993, NIH formally awarded the construction contract to PEI. PEI found a substitute subcontractor to do the mechanical work, but at a cost of $930,000.6 PEI brought suit against Johnson in the Circuit Court for Prince George’s County to recover the $32,000 difference between Johnson’s bid and the cost of the substitute mechanical subcontractor.

The case was heard by the trial court without the aid of a jury. The trial court made several findings of fact, which we summarize:

1. PEI relied upon Johnson’s sub-bid in making its bid for the entire project;

2. The fact that PEI was not the low bidder, but was awarded the project only after the apparent low bidder was disqualified, takes this case out of the ordinary;

3. Prior to NIH awarding PEI the contract on September 28, Johnson, on September 2, withdrew its bid; and

4. PEI’s letter to all potential mechanical subcontractors, dated August 26, 1993, indicates that there was no definite agreement between PEI and Johnson, and that PEI was not relying upon Johnson’s bid.

The trial court analyzed the case under both a traditional contract theory and under a detrimental reliance theory. PEI was unable to satisfy the trial judge that under either theory that a contractual relationship had been formed.

PEI appealed to the Court of Special Appeals, raising both traditional offer and acceptance theory, and “promissory estoppel.” Before our intermediate appellate court considered the case, we issued a writ of certiorari on our own motion.

*152II

The relationships involved in construction contracts have long posed a unique problem in the law of contracts. A brief overview of the mechanics of the construction bid process, as well as our legal system’s attempts to regulate the process, is in order.

A. CONSTRUCTION BIDDING.

Our description of the bid process in Maryland Supreme Corp. v. Blake Co., 279 Md. 531, 369 A.2d 1017 (1977) is still accurate:

“In such a building project there are basically three parties involved: the letting party, who calls for bids on its job; the general contractor, who makes a bid on the whole project; and the subcontractors, who bid only on that portion of the whole job which involves the field of its specialty. The usual procedure is that when a project is announced, a subcontractor, on his own initiative or at the general contractor’s request, prepares an estimate and submits a bid to one or more of the general contractors interested in the project. The general contractor evaluates the bids made by the subcontractors in each field and uses them to compute its total bid to the letting party. After receiving bids from general contractors, the letting party ordinarily awards the contract to the lowest reputable bidder.”

Id. at 533-34, 369 A.2d at 1020-21 (citing The Firm Offer Problem)

B. THE CONSTRUCTION BIDDING CASES—AN HISTORICAL OVERVIEW.

The problem the construction bidding process poses is the determination of the precise points on the timeline that the various parties become bound to each other. The early landmark case was James Baird Co. v. Gimbel Bros., Inc., 64 F.2d 344 (2d Cir.1933). The plaintiff, James Baird Co., [“Baird”] was a general contractor from Washington, D.C., bidding to construct a government building in Harrisburg, Pennsylvania. *153Gimbel Bros., Inc., [“Gimbel”], the famous New York department store, sent its bid to supply linoleum to a number of bidding general contractors on December 24, and Baird received Gimbel’s bid on December 28. Gimbel realized its bid was based on an incorrect computation and notified Baird of its withdrawal on December 28. The letting authority awarded Baird the job on December 30. Baird formally accepted the Gimbel bid on January 2. When Gimbel refused to perform, Baird sued for the additional cost of a substitute linoleum supplier. The Second Circuit Court of Appeals held that Gimbel’s initial bid was an offer to contract and, under traditional contract law, remained open only until accepted or withdrawn. Because the offer was withdrawn before it was accepted there was no contract. Judge Learned Hand, speaking for the court, also rejected two alternative theories of the case: unilateral contract and promissory estoppel. He held that Gimbel’s bid was not an offer of a unilateral contract7 that Baird could accept by performing, i.e., submitting the bid as part of the general bid; and second, he held that the theory of promissory estoppel was limited to cases involving charitable pledges.

Judge Hand’s opinion was widely criticized, see Note, Contracts-Promissory Estoppel, 20 Va.L.Rev. 214 (1933) [hereinafter, “Promissory Estoppel”]; Note, Contracts-Revocation of Offer Before Acceptance-Promissory Estoppel, 28 Ill.L.Rev. 419 (1934), but also widely influential. The effect of the James Baird line of cases, however, is an “obvious injustice without relief of any description.” Promissory Estoppel, at 215. The general contractor is bound to the price submitted to the letting party, but the subcontractors are not bound, and are free to withdraw.8 As one commentator described it, “If *154the subcontractor revokes his bid before it is accepted by the general, any loss which results is a deduction from the general’s profit and conceivably may transform overnight a profitable contract into a losing deal.” Franklin M. Schultz, The Firm Offer Puzzle: A Study of Business Practice in the Construction Industry, 19 U.Chi.L.Rev. 237, 239 (1952).

The unfairness of this regime to the general contractor was addressed in Drennan v. Star Paving, 333 P.2d 757, 51 Cal.2d 409 (1958). Like James Baird, the Drennan case arose in the context of a bid mistake.9 Justice Traynor, writing for the Supreme Court of California, relied upon § 90 of the Restatement (First) of Contracts:

“A promise which the promisor should reasonably expect to induce action or forbearance of a definite and substantial character on the part of the promisee and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise.”

*155Restatement (First) of Contracts § 90 (1932).10

Justice Traynor reasoned that the subcontractor’s bid contained an implied subsidiary promise not to revoke the bid. As the court stated:

“When plaintiff [, a General Contractor,] used defendant’s offer in computing his own bid, he bound himself to perform in reliance on defendant’s terms. Though defendant did not bargain for the use of its bid neither did defendant make it idly, indifferent to whether it would be used or not. On the contrary it is reasonable to suppose that defendant submitted its bid to obtain the subcontract. It was bound to realize the substantial possibility that its bid would be the lowest, and that it would be included by plaintiff in his bid. It was to its own interest that the contractor be awarded the general contract; the lower the subcontract bid, the lower the general contractor’s bid was likely to be and the greater its chance of acceptance and hence the greater defendant’s chance of getting the paving subcontract. Defendant had reason not only to expect plaintiff to rely on its bid but to want him to. Clearly defendant had a stake in plaintiff’s reliance on its bid. Given this interest and the fact that plaintiff is bound by his own bid, it is only fair that plaintiff should have at least an opportunity to accept defendant’s bid after the general contract has been awarded to him.”

Drennan, 51 Cal.2d at 415, 333 P.2d at 760. The Drennan court however did not use “promissory estoppel” as a substitute for the entire contract, as is the doctrine’s usual function. Instead, the Drennan court, applying the principle of § 90, interpreted the subcontractor’s bid to be irrevocable. Justice Traynor’s analysis used promissory estoppel as consideration for an implied promise to keep the bid open for a reasonable time. Recovery was then predicated on traditional bilateral contract, with the sub-bid as the offer and promissory estoppel serving to replace acceptance.

*156The Drennan decision has been very influential. Many states have adopted the reasoning used by Justice Traynor. See, e.g., Debron Corp. v. National Homes Constr. Corp., 493 F.2d 352 (8th Cir.1974) (applying Missouri law); Reynolds v. Texarkana Constr. Co., 237 Ark. 583, 374 S.W.2d 818 (1964); Mead Assocs. Inc. v. Antonsen, 677 P.2d 434 (Colo.1984); Illinois Valley Asphalt v. J.F. Edwards Constr. Co., 45 Ill. Dec. 876, 413 N.E.2d 209, 90 Ill.App.3d 768 (Ill.Ct.App.1980); Lichtefeld-Massaro, Inc. v. R.J. Manteuffel Co., 806 S.W.2d 42 (Ky.App.1991); Constructors Supply Co. v. Bostrom Sheet Metal Works, Inc., 291 Minn. 113, 190 N.W.2d 71 (1971); E.A. Coronis Assocs. v. M. Gordon Constr. Co., 90 N.J. Super 69, 216 A.2d 246 (1966).

Despite the popularity of the Drennan reasoning, the case has subsequently come under some criticism.11 The criticism centers on the lack of symmetry of detrimental reliance in the bid process, in that subcontractors are bound to the general, but the general is not bound to the subcontractors.12 The result is that the general is free to bid shop,13 bid chop14, and to encourage bid peddling,15 to the detriment of *157the subcontractors. One commentator described the problems that these practices create:

“Bid shopping and peddling have long been recognized as unethical by construction trade organizations. These ‘unethical,’ but common practices have several detrimental results. First, as bid shopping becomes common within a particular trade, the subcontractors will pad their initial bids in order to make further reductions during post-award negotiations. This artificial inflation of subcontractor’s offers makes the bid process less effective. Second, subcontractors who are forced into post-award negotiations with the general often must reduce their sub-bids in order to avoid losing the award. Thus, they will be faced with a Hobson’s choice between doing the job at a loss or doing a less than adequate job. Third, bid shopping and peddling tend to increase the risk of loss of the time and money used in preparing a bid. This occurs because generals and subcontractors who engage in these practices use, without expense, the bid estimates prepared by others. Fourth, it is often impossible for a general to obtain bids far enough in advance to have sufficient time to properly prepare his own bid because of the practice, common among many subcontractors, of holding sub-bids until the last possible moment in order to avoid pre-award bid shopping by the general. Fifth, many subcontractors refuse to submit bids for jobs on which they expect bid shopping. As a result, competition is reduced, and, consequently, construction prices are increased. Sixth, any price reductions gained through the use of post-award bid shopping by the general will be of no benefit to the awarding authority, to whom these price reductions would normally accrue as a result of open compe*158tition before the award of the prime contract. Free competition in an open market is therefore perverted because of the use of post-award bid shopping.”

Bid Shopping, at 394-96 (citations omitted). See also Flag Pole, at 818 (bid mistake cases generally portray general contractor as victim, but market reality is that subs are usually in weaker negotiating position); Jay M. Feinman, Promissory Estoppel and Judicial Method, 97 Harv.L.Rev. 678, 707-08 (1984). These problems have caused at least one court to reject promissory estoppel in the contractor-subcontractor relationship. Home Elec. Co. v. Underdown Heating & Air Conditioning Co., 86 N.C.App. 540, 358 S.E.2d 539 (1987). See also Note, Construction Contracts—The Problem of Offer and Acceptance in the General Contractor-Subcontractor Relationship, 37 U.Cinn.L.Re. 798 (1980). But other courts, while aware of the limitations of promissory estoppel, have adopted it nonetheless. See, e.g., Alaska Bussell Elec. Co. v. Vern Hickel Constr. Co., 688 P.2d 576 (Alaska 1984).16

The doctrine of detrimental reliance has evolved in the time since Drennan was decided in 1958. The American Law Institute, responding to Drennan, sought to make detrimental reliance more readily applicable to the construction bidding scenario by adding § 87. This new section was intended to make subcontractors’ bids binding:

Ҥ 87. Option Contract

(2) An offer which the offeror should reasonably expect to induce action or forbearance of a substantial character on the part of the offeree before acceptance and which does *159induce such action or forbearance is binding as an option contract to the extent necessary to avoid injustice.”

Restatement (Second) of Contracts § 87 (1979).17

Despite the drafter’s intention that § 87 of the Restatement (Second) of Contracts (1979) should replace Restatement (First) of Contracts § 90 (1932) in the construction bidding cases, few courts have availed themselves of the opportunity. But see, Arango Constr. Co. v. Success Roofing, Inc., 46 Wash.App. 314, 321-22, 730 P.2d 720, 725 (1986). Section 90(1) of the Restatement (Second) of Contracts (1979) modified the first restatement formulation in three ways, by: 1) deleting the requirement that the action of the offeree be “definite and substantial;” 2) adding a cause of action for third party reliance; and 3) limiting remedies to those required by justice.18

Courts and commentators have also suggested other solutions intended to bind the parties without the use of detrimental reliance theory. The most prevalent suggestion19 is the use of the firm offer provision of the Uniform Commercial *160Code. Maryland Code (1992 Repl.Vol.), § 2-205 of the Commercial Law Article. That statute provides:

“An offer by a merchant to buy or sell goods in a signed writing which by its terms gives assurance that it will be held open is not revocable, for lack of consideration, during the time stated or if no time is stated for a reasonable time, but in no event may such period of irrevocability exceed three months; but any such term of assurance on a form supplied by the offeree must be separately signed by the offeror.”

In this manner, subcontractor’s bids, made in writing and giving some assurance of an intent that the offer be held open, can be found to be irrevocable.

The Supreme Judicial Court of Massachusetts has suggested three other traditional theories that might prove the existence of a contractual relationship between a general contractor and a sub: conditional bilateral contract analysis; unilateral contract analysis; and unrevoked offer analysis. Loranger Constr. Corp. v. E.F. Hauserman Co., 384 N.E.2d 176, 376 Mass. 757 (1978). If the general contractor could prove that there was an exchange of promises binding the parties to each other, and that exchange of promises was made before bid opening, that would constitute a valid bilateral promise conditional upon the general being awarded the job. Loranger, 384 N.E.2d at 180, 376 Mass. at 762. This directly contrasts with Judge Hand’s analysis in James Baird, that a general’s use of a sub-bid constitutes acceptance conditional upon the award of the contract to the general. James Baird, 64 F.2d at 345-46.

Alternatively, if the subcontractor intended its sub-bid as an offer to a unilateral contract, use of the sub-bid in the general’s bid constitutes part performance, which renders the initial offer irrevocable under the Restatement (Second) of Contracts § 45 (1979). Loranger, 384 N.E.2d at 180, 376 Mass. at 762. This resurrects a second theory dismissed by Judge Learned Hand in James Baird.

*161Finally, the Loranger court pointed out that a jury might choose to disbelieve that a subcontractor had withdrawn the winning bid, meaning that acceptance came before withdrawal, and a traditional bilateral contract was formed. Loranger, 384 N.E.2d at 180, 376 Mass. at 762-63.20

Another alternative solution to the construction bidding problem is no longer seriously considered-revitalizing the common law seal. William Noel Keyes, Consideration Reconsidered—The Problem of the Withdrawn Bid, 10 Stan.L.Rev. 441, 470 (1958). Because a sealed option contract remains firm without consideration this alternative was proposed as a solution to the construction bidding problem.21

It is here that the state of the law rests.

Ill

If PEI is able to prove by any of the theories described that a contractual relationship existed, but Johnson failed to perform its end of the bargain, then PEI will recover the $32,000 in damages caused by Johnson’s breach of contract. Alternatively, if PEI is unable to prove the existence of a contractual relationship, then Johnson has no obligation to PEI. We will test the facts of the case against the theories described to determine if such a relationship existed.

The trial court held, and we agree, that Johnson’s sub-bid was an offer to contract and that it was sufficiently clear and definite. We must then determine if PEI made a timely and valid acceptance of that offer and thus created a traditional bilateral contract, or in the absence of a valid acceptance, if PEI’s detrimental reliance served to bind Johnson to its sub-*162bid. We examine each of these alternatives, beginning with traditional contract theory.22

A. TRADITIONAL BILATERAL CONTRACT

The trial judge found that there was not a traditional contract binding Johnson to PEI. A review of the record and the trial judge’s findings make it clear that this was a close question. On appeal however, our job is to assure that the trial judge’s findings were not clearly erroneous. Maryland Rule 8-131 (c). This is an easier task.

The trial judge rejected PEI’s claim of bilateral contract for two separate reasons: 1) that there was no meeting of the minds; and 2) that the offer was withdrawn prior to acceptance. Both need not be proper bases for decision; if either of these two theories is not clearly erroneous, we must affirm.

There is substantial evidence in the record to support the judge’s conclusion that there was no meeting of the minds. PEI’s letter of August 26, to all potential mechanical subcontractors, reproduced supra, indicates, as the trial judge found, that PEI and Johnson “did not have a definite, certain meeting of the minds on a certain price for a certain quantity of *163goods....” Because this reason is itself sufficient to sustain the trial judge’s finding that no contract was formed, we affirm.

Alternatively, we hold, that the evidence permitted the trial judge to find that Johnson revoked its offer prior to PEI’s final acceptance. We review the relevant chronology. Johnson made its offer, in the form of a sub-bid, on August 5. On September 1, PEI accepted. Johnson withdrew its offer by letter dated September 2. On September 28, NIH awarded the contract to PEI. Thus, PEI’s apparent acceptance came one day prior to Johnson’s withdrawal.

The trial court found, however, “that before there was ever a final agreement reached with the contract awarding authorities, that Johnson made it clear to [PEI] that they were not going to continue to rely on their earlier submitted bid.” Implicit in this finding is the judge’s understanding of the contract. Johnson’s sub-bid constituted an offer of a contingent contract. PEI accepted that offer subject to the condition precedent of PEI’s receipt of the award of the contract from NIH. Prior to the occurrence of the condition precedent, Johnson was free to withdraw. See 2 Williston on Contracts § 6:14 (4th ed.). On September 2, Johnson exercised that right to revoke.23 The trial judge’s finding that withdrawal proceeded valid final acceptance is therefore logical and supported by substantial evidence in the record. It was not clearly erroneous, so we shall affirm.

*164B. DETRIMENTAL RELIANCE

PEI’s alternative theory of the case is that PEI’s detrimental reliance binds Johnson to its bid. We are asked, as a threshold question, if detrimental reliance applies to the setting of construction bidding. Nothing in our previous cases suggests that the doctrine was intended to be limited to a specific factual setting. The benefits of binding subcontractors outweigh the possible detriments of the doctrine.24

This Court has decided cases based on detrimental reliance as early as 1854,25 and the general contours of the doctrine are well understood by Maryland courts. The historical development of promissory estoppel, or detrimental reliance, in Maryland has mirrored the development nationwide. It was originally a small exception to the general consideration requirement, and found in “cases dealing with such narrow problems as gratuitous agencies and bailments, waivers, and promises of marriage settlement.” Jay M. Feinman, Promissory Estoppel and Judicial Method, 97 Harv.L.Rev. 678, 680 (1984). The early Maryland cases applying “promissory estoppel” or detrimental reliance primarily involve charitable pledges.

The leading case is Maryland Nat’l Bank v. United Jewish Appeal Fed’n of Greater Washington, 286 Md. 274, 407 A.2d 1130 (1979), where this Court’s opinion was authored by the late Judge Charles E. Orth, Jr. In that case, a decedent, Milton Polinger, had pledged $200,000 to the United Jewish Appeal [“UJA”]. The UJA sued Polinger’s estate in an attempt to collect the money promised them. Judge Orth reviewed four prior decisions of this Court26 and determined *165that Restatement (First) of Contracts § 90 (1932) applied. Id. at 281, 407 A.2d at 1134. Because the Court found that the UJA had not acted in a “definite or substantial” manner in reliance on the contribution, no contract was found to have been created. Id. at 289-90, 407 A.2d at 1138-39.

Detrimental reliance doctrine has had a slow evolution from its origins in disputes over charitable pledges, and there remains some uncertainty about its exact dimensions.27 Two cases from the Court of Special Appeals demonstrate that confusion.

The first, Snyder v. Snyder, 79 Md.App. 448, 558 A.2d 412 (1989), arose in the context of a suit to enforce an antenuptial agreement. To avoid the statute of frauds, refuge was sought in the doctrine of “promissory estoppel.”28 The court held *166that “promissory estoppel” requires a finding of fraudulent conduct on the part of the promisor. See also Friedman & Fuller v. Funkhouser, 107 Md.App. 91, 666 A.2d 1298 (1995).

The second, Kiley v. First Nat’l Bank, 102 Md.App. 317, 649 A.2d 1145 (1994), the court stated that “[i]t is unclear whether Maryland continues to adhere to the more stringent formulation of promissory estoppel, as set forth in the original Restatement of Contracts, or now follows the more flexible view found in the Restatement (Second) Contracts.” Id. at 336, 649 A.2d at 1154.

To resolve these confusions we now clarify that Maryland courts are to apply the test of the Restatement (Second) of Contracts § 90(1) (1979), which we have recast as a four-part test:

1. a clear and definite promise;

2. where the promisor has a reasonable expectation that the offer will induce action or forbearance on the part of the promisee;

3. which does induce actual and reasonable action or forbearance by the promisee; and

4. causes a detriment which can only be avoided by the enforcement of the promise.29

*167In a construction bidding case, where the general contractor seeks to bind the subcontractor to the sub-bid offered, the general must first prove that the subcontractor’s sub-bid constituted an offer to perform a job at a given price. We do not express a judgment about how precise a bid must be to constitute an offer, or to what degree a general contractor may request to change the offered scope before an acceptance becomes a counter-offer. That fact-specific judgment is best reached on a case-by-case basis. In the instant case, the trial judge found that the sub-bid was sufficiently clear and definite to constitute an offer, and his finding was not clearly erroneous.

Second, the general must prove that the subcontractor reasonably expected that the general contractor would rely upon the offer. The subcontractor’s expectation that the general contractor will rely upon the sub-bid may dissipate through time.30

In this case, the trial court correctly inquired into Johnson’s belief that the bid remained open, and that consequently PEI was not relying on the Johnson bid. The judge found that due to the time lapse between bid opening and award, “it would be unreasonable for offers to continue.” This is supported by the substantial evidence. James Kick testified that although he knew of his bid mistake, he did not bother to notify PEI because J.J. Kirlin, Inc., and not PEI, was the apparent low bidder. The trial court’s finding that Johnson’s reasonable expectation had dissipated in the span of a month is not clearly erroneous.

As to the third element, a general contractor must prove that he actually and reasonably relied on the subcontractor’s sub-bid. We decline to provide a checklist of potential methods of proving this reliance, but we will make several *168observations. First, a showing by the subcontractor, that the general contractor engaged in “bid shopping,” or actively encouraged “bid chopping,” or “bid peddling” is strong evidence that the general did not rely on the sub-bid. Second, prompt notice by the general contractor to the subcontractor that the general intends to use the sub on the job, is weighty evidence that the general did rely on the bid.31 Third, if a sub-bid is so low that a reasonably prudent general contractor would not rely upon it, the trier of fact may infer that the general contractor did not in fact rely upon the erroneous bid.

In this case, the trial judge did not make a specific finding that PEI failed to prove its reasonable reliance upon Johnson’s sub-bid. We must assume, however, that it was his conclusion based on his statement that “the parties did not have a definite, certain meeting of the minds on a certain price for a certain quantity of goods and wanted to renegotiate____” The August 26,1993, fax from PEI to all prospective mechanical subcontractors, is evidence supporting this conclusion. Although the finding that PEI did not rely on Johnson’s bid was indisputably a close call, it was not clearly erroneous.

Finally, as to the fourth prima facie element, the trial court, and not a jury, must determine that binding the subcontractor is necessary to prevent injustice. This element is to be enforced as required by common law equity courts—the general contractor must have “clean hands.” This requirement includes, as did the previous element, that the general did not engage in bid shopping, chopping or peddling, but also requires the further determination that justice compels the result. The fourth factor was not specifically mentioned by the trial judge, but we may infer that he did not find this case to merit an equitable remedy.

Because there was sufficient evidence in the record to support the trial judge’s conclusion that PEI had not proven *169its case for detrimental reliance, we must, and hereby do, affirm the trial court’s ruling.

IV

In conclusion, we emphasize that there are different ways to prove that a contractual relationship exists between a general contractor and its subcontractors. Traditional bilateral contract theory is one. Detrimental reliance can be another. However, under the evidence in this case, the trial judge was not clearly erroneous in deciding that recovery by the general contractor was not justified under either theory.

JUDGMENT AFFIRMED, WITH COSTS.

*255Doris, J.

Ernest P. Ardente, the plaintiff, brought this civil action in Superior Court to specifically enforce an agreement between himself and William A. and Katherine L. Horan, the defendants, to sell certain real property. The defendants filed an answer together with ia motion for summary judgment pursuant to Super. R. Civ. P. 56. Following the submission of affidavits by both the plaintiff and the defendants and a hearing on the motion, judgment was entered by a Superior Court justice for the defendants. The plaintiff now appeals.

In August 1975, certain residential property in the city of Newport was offered for sale by defendants. The plaintiff made a bid of $250,000 for the property which was communicated to defendants by their attorney. After defendants’ attorney advised plaintiff that the bid was ac*256ceptable to defendants, he prepared a purchase and sale agreement at the direction of defendants and forwarded it to plaintiff’s attorney for plaintiff’s signature. After investigating certain title conditions, plaintiff executed the agreement. Thereafter plaintiff’s attorney returned the document to defendants along with a check in the amount of $20,000 and a letter dated September 8, 1975, which read in relevant part as follows:

“My clients are concerned that the following items remain with the real estate: a) dining room set and tapestry wall covering in dining room; b) fireplace fixtures throughout; c) the sun parlor furniture. I would appreciate your confirming that these items are a part of the transaction, as they would be difficult to replace.”

The defendants refused to agree to sell the enumerated items and did not sign the purchase and sale agreement. They directed their attorney to return the agreement and the deposit check to plaintiff and subsequently refused to sell the property to plaintiff. This action for specific performance followed.

In Superior Court, defendants moved for summary judgment on the ground that the facts were not in dispute and no contract had been formed as a matter of law.1 The trial justice ruled that the letter quoted above constituted a conditional acceptance of defendants’ offer to sell the property and consequently must be construed as a counteroffer. Since defendants never accepted the counteroffer, it followed that no contract was formed, and summary judgment was granted.

Summary judgment is a drastic remedy and should be *257cautiously applied; nevertheless, where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law, summary judgment properly issues. Ladouceur v. Prudential Ins. Co., 111 R.I. 370, 302 A.2d 801 (1973). On appeal this court is bound by the same rules as the trial court. Cardente v. Travelers Ins. Co., 112 R.I. 713, 315 A.2d 63 (1974). With these rules in mind we address ourselves to the facts.

The plaintiff assigns several grounds for appeal in his brief. He urges first that summary judgment was improper because there existed a genuine issue of fact. The factual question, according to plaintiff, was whether the oral agreement which preceeded the drafting of the purchase and sale agreement was intended by the parties to take effect immediately to create a binding oral contract for the sale of the property.

We cannot agree with plaintiff’s position. A review of the record shows that the issue was never raised before the trial justice. The plaintiff did not, in his affidavit in opposition to summary judgment or by any other means, bring to the attention of the trial court any facts which established the existence of a relevant factual dispute. Indeed, at the hearing on the motion plaintiff did not even mention the alleged factual dispute which he now claims the trial justice erred in overlooking. The only issue plaintiff addressed was the proper interpretation of the language used in plaintiff’s letter of acceptance. This was solely a question of law. See Cassidy v. Springfield Life Ins. Co., 106 R.I. 615, 262 A.2d 378 (1970); Johnson v. Kile & Morgan Co., 49 R.I. 99, 140 A. 3 (1928).

It is well-settled that one who opposes a motion for summary judgment may not rest upon the mere allegations or denials of his pleading. He has an affirmative duty to set forth specific facts which show that there is a genuine issue of fact to be resolved at trial. If he does not do so, *258summary judgment, if appropriate, will be entered against him. Gallo v. National Nursing Homes, Inc., 106 R.I. 485, 488, 261 A.2d 19, 21 (1970); Sutter v. Harrington, 51 R.I. 825, 154 A. 657 (1931); 1 Kent, R. I. Civ. Prac. §56.4 (1969). Accordingly, since no genuine issue of fact was presented to the trial justice, we hold that he did not err in ruling that summary judgment was appropriate.2

The plaintiff’s second contention is that the trial justice incorrectly applied the principles of contract law in deciding that the facts did not disclose a valid acceptance of defendants’ offer. Again we cannot agree.

The trial justice proceeded on the theory that the delivery of the purchase and sale agreement to plaintiff constituted an offer by defendants to sell the property. Because we must view the evidence in the light most favorable to the party against whom summary judgment was entered, in this case plaintiff, we assume as the trial justice did that the delivery of the agreement was in fact an offer.3

The question we must answer next is whether there was an acceptance of that offer. The general rule is that where, *259as here, there is an offer to form a bilateral contract, the offeree must communicate his acceptance to the offeror before any contractual obligation can come into being. A mere mental intent to accept the offer, no matter how carefully formed, is not sufficient. The acceptance must be transmitted to the offeror in some overt manner. Bullock v. Harwich, 158 Fla. 834, 30 So.2d 539 (1947); Armstrong v. Guy H. James Constr. Co., 402 P.2d 275 (Okla. 1965); 1 Restatement Contracts §20 (1932). See generally 1 Corbin, Contracts §67 (1963). A review of the record shows that the only expression of acceptance which was communicated to defendants was the delivery of the executed purchase and sale agreement accompanied by the letter of September 8. Therefore it is solely on the basis of the language used in these two documents that we must determine whether there was a valid acceptance. Whatever plaintiff’s unexpressed intention may have been in sending the documents is irrelevant. We must be concerned only with the language actually used, not the language plaintiff thought he was using or intended to use.

There is no doubt that the execution and delivery of the purchase and sale agreement by plaintiff, without more, would have operated as an acceptance. The terms of the accompanying letter, however, apparently conditioned the acceptance upon the inclusion of various items of personalty. In assessing the effect of the terms of that letter we must keep in mind certain generally accepted rules. To be effective, an acceptance must be definite and unequivocal. “An offeror is entitled to know in clear terms whether the offeree accepts his proposal. It is not enough that the words of a reply justify a probable inference of assent.” 1 Restatement Contracts §58, comment a (1932). The acceptance may not impose additional conditions on the offer, nor may it add limitations. “An acceptance which is equivocal or upon condition or with a limitation is a counter*260offer and requires acceptance by the original offeror before a contractual relationship can exist.” John Hancock Mut. Life Ins. Co. v. Dietlin, 97 R.I. 515, 518, 199 A.2d 311, 313 (1964). Accord, Cavanaugh v. Conway, 36 R.I. 571, 587, 90 A. 1080, 1086 (1914).

However, an acceptance may be valid desipite conditional language if the acceptance is clearly independent of the condition. Many cases have so held. Williston states the rule as follows:

“Frequently an offeree, while making a positive acceptance of the offer, also makes a request or suggestion that some addition or modification be made. So long as it is clear that the meaning of the acceptance is positively and unequivocally to accept the offer whether such request is granted or not, a contract is formed.” 1 Williston, Contracts §79 at 261-62 (3d ed. 1957).

Corbin is in agreement with the above view. 1 Corbin, supra §84 at 363-65. Thus our task is to decide whether plaintiff’s letter is more reasonably interpreted as a qualified acceptance or as an absolute acceptance together with a mere inquiry concerning a collateral matter.

In making our decision we recognize that, as one text states, “The question whether a communication by an offeree is a conditional acceptance or counter-offer is not always easy to answer. It must be determined by the same common-sense process of interpretation that must be applied in so many other cases.” 1 Corbin, supra §82 at 353. In our opinion, the language used in plaintiff’s letter of September 8 is-not consistent with an absolute acceptance accompanied by a request for a gratuitous benefit. We interpret the letter to impose a condition on plaintiff’s acceptance of defendants’ offer. The letter does not unequivocally state that even without the enumerated items plaintiff is willing to complete the contract. In fact, the letter seeks “confirmation” that the listed items “are a part of *261the transaction”. Thus, far from being an independent, collateral request, the sale of the items in question is explicitly referred to as a part of the real estate transaction. Moreover, the letter goes on to stress the difficulty of finding replacements for these items. This is a further indication that plaintiff did not view the inclusion of the listed items as merely collateral or incidental to the real estate transaction.

Manning, West, Santaniello & Pari, Joseph T. Pari, for plaintiff.

Moore, Virgadamo, Boyle & Lynch, Ltd., Jeremiah C. Lynch, Jr., Joseph R. Palumbo, Jr., for defendants.

A review of the relevant case law discloses that those cases in which an acceptance was found valid despite an accompanying conditional term generally involved a more definite expression of acceptance than the one in the case at bar. E.g., Moss v. Cogle, 267 Ala. 208, 101 So.2d 314 (1958); Jaybe Constr. Co. v. Beco, Inc., 3 Conn. Cir. Ct. 406, 216 A.2d 208, 212 (1965); Katz v. Pratt Street Realty Co., 257 Md. 103, 262 A.2d 540 (1970); Nelson v. Hamlin, 258 Mass. 331, 155 N.E. 18 (1927); Duprey v. Donahoe, 52 Wash.2d 129, 323 P.2d 903 (1958).

Accordingly, we hold that since the plaintiff’s letter of acceptance dated September 8 was conditional, it operated as a rejection of the defendants’ offer and no conctractual obligation was created.

The plaintiff’s appeal is denied and dismissed, the judgment appealed from is affirmed and the case is remanded to the Superior Court.

Mr. Justice Paolino did not participate.

*1186AINSWORTH, Circuit Judge:

This is an appeal from a Mississippi diversity action in which appellant Houston Dairy, Inc. attempted to recover $16,000 sent to appellee John Hancock Mutual Life Insurance Company as a “Good Faith Deposit” on a loan application which Houston Dairy claims never became binding. At the conclusion of the nonjury trial, the district court ruled that there was a binding contract between the parties and that the $16,-000 deposit represented valid, liquidated damages forfeited by Houston Dairy when it breached the contract. We reverse.

I. Facts

John Hancock mailed a commitment letter to Houston Dairy on December 30, 1977 in which it agreed to lend Houston Dairy $800,000 at 9V!i% provided that within seven days Houston Dairy would return the commitment letter with a written acceptance and enclose either a letter of credit or a cashier’s check in the amount of $16,000. The commitment letter stated the $16,000 was a “Good Faith Deposit” and was the appropriate measure of liquidated damages to be awarded John Hancock should Houston Dairy default. Dr. Dyer, president and principal shareholder of Houston Dairy, did not execute the letter until eighteen days later, on January 17, 1978. Along with the letter, Houston Dairy mailed a $16,000 cashier’s check.

Upon receiving the returned commitment letter on January 23, an agent for John Hancock mailed the cashier’s check to the John Hancock Depository and Service Center in Champaign, Illinois, for deposit and sent the loan-closing attorney, Harvey Henderson, the necessary information to close the loan. Meanwhile, Dr. Dyer delivered a copy of the commitment letter to Houston Dairy’s attorney and asked him to call Henderson to ascertain his fee for closing the loan. On January 28, the two attorneys talked and agreed to the method they would use to close the loan and the manner in which the fee would be charged. However, on January 30, Houston Dairy was able to obtain a 9% loan from a state bank. Houston Dairy then requested a refund of its $16,000 deposit, which was refused by John Hancock.

In the district court, Houston Dairy contended that the return of the commitment letter constituted a counter offer since the seven-day time period for acceptance had expired, that John Hancock never communicated its acceptance of the counter offer, thus allowing Houston Dairy to revoke the counter offer, which it did on January 31. Therefore, the argument proceeds, no contract was ever formed and Houston Dairy was entitled to a refund of $16,000.

The district court disagreed, finding that John Hancock had both waived the seven-day limitation and validly accepted a counter offer. Accordingly, the court held that the parties had entered into a binding contract and awarded John Hancock the $16,-000 deposit as valid, liquidated damages for breach of the loan agreement.

II. Was there a contract?

It is fundamental that a contract is formed only upon acceptance of an offer. Couret v. Conner, 118 Miss. 598, 79 So. 230, 232 (1918). Just as basic is the principle that an offeror is free to limit acceptance to a fixed time period. 1 A Corbin, Contracts § 35 (1963); 1 S. Williston, Contracts § 76 (3d ed. W. Jaege, 1957); Restatement of Contracts § 40 (1932). Once the time period has expired, a belated attempt to accept would be ineffective. However, such an untimely attempt to accept normally constitutes a counter offer which would shift the power of acceptance to the original offeror. 1 Corbin § 74; 1 Williston §§ 53, 93; Restatement § 73. Additionally, acceptance of a counter offer is established only by conforming to the rules governing acceptance, not a separate theory of “waiver and ratification.” Kurio v. United States, 429 F.Supp. 42, 64 (S.D.Tex.1970).1

*1187It is therefore clear in the instant case that upon expiration of the seven-day time period, John Hancock’s offer terminated. Thus the action taken by Houston Dairy in signing and returning the commitment letter subsequent to the termination of the offer constituted a counter offer which John Hancock could accept within a reasonable time.

In Mississippi, the courts have long recognized that for acceptance to have effect, it must be communicated to the proposer of the offer. See Pioneer Box Co. v. Price Veneer & Lumber Co., 132 Miss. 189, 96 So. 103, 105 (1923). John Hancock contends it did accept Houston Dairy’s counter offer and that the acceptance was communicated to Houston Dairy.

According to John Hancock, depositing Houston Dairy’s check was itself sufficient to operate as communication of its acceptance of the counter offer. John Hancock argues that its silence plus retention of Houston Dairy’s money constituted acceptance and notification. Indeed, Mississippi has specifically recognized the validity of acceptance by silence within the guidelines laid down in Restatement § 72.2 See Old Equity Life Insurance Co. v. Jones, 217 So.2d 648, 651 (Miss.1969); Ammons v. Wilson & Co., 176 Miss. 645, 170 So. 227, 228 (1936). However, the present facts do not fit within these guidelines. Houston Dairy neither had previous dealings nor had otherwise been led to understand that John Hancock’s silence and temporary retention of its deposit would operate as acceptance. In addition, Houston Dairy had no knowledge that its check had been deposited in John Hancock’s depository. Since Houston Dairy sent a cashier’s check, it could not have known the check had even been deposited unless notified by John Hancock or its bank. No such notice arrived from John Hancock and none is required from the bank.

The Mississippi Supreme Court held in L. A. Becker v. Clardy, 96 Miss. 301, 51 So. 211 (1910) that the mere depositing of a check was insufficient to constitute acceptance of an offer. There, an offeror sent a $100 downpayment along with its order for merchandise to the offeree. As was its policy, the offeree immediately deposited the check in its account, which was later paid in due course by the bank upon which the check was drawn. However, the offeree subsequently mailed a letter to the offeror rejecting the offer and enclosed a check for $100. The court held that upon receipt of the order and downpayment, the offeree was “entitled to a reasonable time in which to examine and determine whether it would accept or reject [the order], ... Deposit*1188ing the check for collection, therefore, did not constitute acceptance of the order.” Id., 51 So. at 213.3

John Hancock also contends that Houston Dairy was notified of its acceptance in the conversation between the attorneys for both parties on January 28. However, a review of the testimony concerning that conversation shows no communication of acceptance. Indeed, John Hancock’s closing attorney testified that at the time of his conversation with Houston Dairy’s attorney, he had not received the executed commitment letter and had no knowledge a counter offer had even been made. His conversation only concerned the method to be used to close the loan and the distribution of the fee to be charged, not acceptance of the counter offer. Houston Dairy cannot be deemed to have knowledge of John Hancock’s acceptance simply by requesting and receiving information on the procedures for closing a loan should an agreement be reached.

III. Conclusion

In summary, Houston Dairy could not accept John Hancock’s offer once the time period had lapsed. Thus, when Houston Dairy executed and returned the commitment letter several days late, it was proposing a counter offer which John Hancock could either accept or reject. Since the actions and policies of John Hancock were unknown to Houston Dairy, mere silence was not operative as an acceptance of the counter offer, no communication of acceptance having been received. Houston Dairy therefore was entitled to revoke its counter offer, which it did on January 31. Accordingly, we reverse the judgment of the district court and render in favor of Houston Dairy for the amount of its deposit, $16,000.

REVERSED.

CELEBREZZE, Circuit Judge.

This is an appeal from the District Court’s denial of Defendant-Appellant’s motion for a stay pending arbitration, pursuant to Section 3 of the United States Arbitration Act of 1925, 9 U.S.C. § 3. The suit arose after a series of over 55 transactions during 1968, 1969, and 1970 in which Plaintiffs-Appellees *1163[hereinafter The Carpet Mart], carpet retailers in Kingsport, Tennessee, purchased carpets from Defendant-Appellant [hereinafter Collins & Aikman], incorporated under the laws of the State of Delaware, with its principal place of business in New York, New York, and owner of a carpet manufacturing plant [formerly the Painter Carpet Mills, Inc.] located in Dalton, Georgia. The Carpet Mart originally brought this action in a Tennessee state trial court,, seeking compensatory and punitive damages in the amount of $450,000 from Collins & Aikman for the latter’s alleged fraud, deceit, and misrepresentation in the sale of what were supposedly carpets manufactured from 100% Kodel polyester fiber. The Carpet Mart maintains that in May, 1970, in response to a customer complaint, it learned that not all of the carpets were manufactured from 100% Kodel polyester fiber but rather some were composed of a cheaper and inferior carpet fiber. After the cause was removed to the District Court on the basis of diversity of citizenship, Collins & Aikman moved for a stay pending arbitration, asserting that The Carpet Mart was bound to an arbitration agreement which appeared on the reverse side of Collins & Aikman’s printed sales acknowledgment forms. Holding that there existed no binding arbitration agreement between the parties, the District Court denied the stay. For the reasons set forth below, we remand the case to. the District Court for further findings.

I

We initially note that the denial of a motion to stay pending arbitration, although interlocutory in nature, is appealable to this Court. In Shanferoke Coal & Supply Corp. v. Westchester Service Corp., 293 U.S. 449, 55 S.Ct. 313, 79 L.Ed. 583 (1935), the Supreme Court held that a motion to stay pending arbitration under 9 U.S.C. § 3 is, in effect, an application for an interlocutory injunction, the denial of which is appealable under Section 9 of the Judicial Code [now, as amended, 28 U.S.C. § 1292.] See also Hoover Motor Express Co., Inc. v. Teamsters, Chauffeurs, Helpers and Taxicab Drivers, Local No. 327, 217 F.2d 49, 51 (6th Cir. 1954). We also find that there is no conflicts of law problem in the present case, the Uniform Commercial Code having been enacted in both Georgia and Tennessee at the time of the disputed transactions. G.C.A. Tit. 109A (eff. April 1, 1963) (without Official Comments); T.C.A. Tit. 47 (eff. June 30, 1964) (with Official Comments).

II

The primary question before us on appeal is whether the District Court, in denying Collins & Aikman’s motion for a stay pending arbitration, erred in holding that The Carpet Mart was not bound by the arbitration agreement appearing on the back of Collins & Aik-man’s acknowledgment forms. In reviewing the District Court’s determination, we must look closely at the procedures which were followed in the sales transactions which gave rise to the present dispute over the arbitration agreement.

In each of the more than 55 transactions, one of the partners in The Carpet Mart, or, on some occasions, Collins & Aikman’s visiting salesman, telephoned Collins & Aikman’s order department in Dalton, Georgia, and ordered certain quantities of carpets listed in Collins & Aikman’s catalogue. There is some dispute as to what, if any, agreements were reached through the telephone calls and through the visits by Collins & Aik-man’s salesman. After each oral order was placed, the price, if any, quoted by the buyer was checked against Collins & Aikman's price list, and the credit department was consulted to determine if The Carpet Mart had paid for all previous shipments. After it was found that everything was in order, Collins & Aikman’s order department typed the information concerning .the particular order on one of its printed acknowledgment forms. Each acknowledgment form bore one of three legends: “Acknowledgment,” “Customer Acknowledg*1164ment,” or “Sales Contract.” The following provision was printed on the face of the forms bearing the “Acknowledgment” legend:

“The acceptance of your order is subject to all of the terms and conditions on the face and reverse side hereof, including arbitration, all of which are accepted by buyer; it supersedes buyer’s order form, if any. It shall become a contract either (a) when signed and delivered by buyer to seller and accepted in writing by seller, or (b) at Seller’s option, when buyer shall have given to seller specification of assortments, delivery dates, shipping instructions, or instructions to bill and hold as to all or any part of the merchandise herein described, or when buyer has received delivery of the whole or any part thereof, or when buyer has otherwise assented to the terms and conditions hereof.”

Similarly, on the face of the forms bearing the “Customer Acknowledgment” or “Sales Contract” legends the following provision appeared:

“This order is given subject to all of the terms and conditions on the face and reverse side hereof, including the provisions for arbitration and the ex-' elusion of warranties, all of which are accepted by Buyer, supersede Buyer’s order form, if any, and constitute the entire contract between Buyer and Seller. This order shall become a contract as to the entire quantity specified either (a) when signed and delivered by Buyer to Seller and accepted in writing by Seller or (b) when Buyer has received and retained this order for ten days without objection, or (c) when Buyer has accepted delivery of any part of the merchandise specified herein or has furnished to Seller specifications or assortments, delivery dates, shipping instructions, or instructions to bill and hold, or when Buyer has otherwise indicated acceptance of the terms hereof.”

The small print on the reverse side of the forms provided, among other things, that all claims arising out of the contract would be submitted to arbitration in New York City. Each acknowledgment form was signed by an employee of Collins & Aikman’s order department and mailed to The Carpet Mart on the day the telephone order was received or, at the latest, on the following day.1 The carpets were thereafter shipped to The Carpet Mart, with the interval between the mailing of the acknowledgment form and shipment of the carpets varying from a brief interval to a period of several weeks or months. Absent a delay in the mails, however, The Carpet Mart always received the acknowledgment forms prior to receiving the carpets. In all cases The Carpet Mart took delivery of and paid for the carpets without objecting to any terms contained in the acknowledgment form.

In holding that no binding arbitration agreement was created between the parties through the transactions above, the District Court relied on T.C.A. § 47-2-207 [UCC § 2-207], which provides:

“(1) A definite and seasonable expression of acceptance or a written confirmation which is sent within a reasonable time operates as an acceptance even though it states terms additional to or different from those offered or agreed upon, unless acceptance is expressly made conditional on *1165assent to the additional or different terms.

“(2) The additional terms are to be construed as proposals for addition to the contract. Between merchants such terms become part of the contract unless: (a) the offer expressly limits acceptance to the terms of the offer; (b) they materially alter it; or (c) notification of objection to them has already been given or is given within a reasonable time after notice of them is received.

“(3) Conduct by both parties which recognizes the existence of a contract is sufficient to establish a contract for sale although the writings of the parties' do not otherwise establish a contract. In such case the terms of the particular contract consist of those terms on which the writings of the parties agree, together with any supplementary terms incorporated under any other provisions of chapters 1 through 9 of this title.”

The District Court found that Subsection 2-207(3) controlled the instant case, quoting the following passage from 1 W. Hawkland, A Transactional Guide to the Uniform Commercial Code § 1.-090303, at 19-20 (1964):

“If the seller . . . ships the goods and the buyer accepts them, a contract is formed under subsection (3). The terms of this contract are those on which the purchase order and acknowledgment agree, and the additional terms needed for a contract are to be found throughout the U.C.C.

[T]he U.C.C. does not impose an arbitration term on the parties where their contract is silent on the matter. Hence, a conflict between an arbitration and an no-arbitration clause would result in the no-arbitration clause becoming effective.”

Under this authority alone the District Court concluded that the arbitration clause on the back of Collins & Aikman’s sales acknowledgment had not become a binding term in the 50-odd transactions with The Carpet Mart.

In reviewing this determination by the District Court, we are aware of the problems which courts have had in interpreting Section 2-207. This section of the UCC has been described as a “murky bit of prose,” Southwest Engineering Co. v. Martin Tractor Co., 205 Kan. 684, 694, 473 P.2d 18, 25 (1970), as “not too happily drafted," Roto-Lith Ltd. v. F. P. Bartlett & Co., 297 F.2d 497, 500 (1st Cir. 1962), and as “one of the most important, subtle, and difficult in the entire Code, and well it may be said that the product as it finally reads is not altogether satisfactory.” Duesenberg & King, Sales and Bulk Transfers under the Uniform Commercial Code, (Vol. 3, Bender’s Uniform Commercial Code Service) § 3.03, at 3-12 (1969). Despite the lack of clarity in its language, Section 2-207 manifests definite objectives which are significant in the present case.

As Official Comment No. 1 indicates, UCC § 2-207 was intended to apply to two situations:

“The one is where an agreement has been reached either orally or by informal correspondence between the parties and is followed by one or both of the parties sending formal acknowledgments or memoranda embodying the terms so far as agreed upon and adding terms not discussed. The other situation is one in which a wire or letter expressed and intended as the closing or confirmation of an agreement adds further minor suggestions or proposals such as ‘ship by Tuesday,’ ‘rush,’ ‘ship draft against bill of lading inspection allowed,’ or the like.” T.C.A. § 47-2-207 [UCC § 2-207], Official Comment 1.

Although Comment No. 1 is itself somewhat ambiguous, it is clear that Section 2-207, and specifically Subsection 2-207(1), was intended to. alter the “ribbon matching” or “mirror” rule of common law, under which the terms of an acceptance or confirmation were required to be identical to the terms of the offer or oral agreement, respectively. 1 W. Hawkland, supra, at 16; R. Nords-*1166trom, Handbook of the Law of Sales, Sec. 37, at 99-100 (1970). Under the common law, an acceptance or a confirmation which contained terms additional to or different from those of the offer or oral agreement constituted a rejection of the offer or agreement and thus became a counter-offer. The terms of the counter-offer were said to have been accepted by the original offeror when he proceeded to perform under the contract without objecting to the counter-offer. Thus, a buyer was deemed to have accepted the seller’s counter-offer if he took receipt of the goods and paid for them without objection.

Under Section 2-207 the result is different. This section of the Code recognizes that in current commercial transactions, the terms of the offer and those of the acceptance will seldom be identical. Rather, under the current “battle of the forms,” each party typically has a printed form drafted by his attorney and containing as many terms as could be envisioned to favor that party in his sales transactions. Whereas under common law the disparity between the fine-print terms in the parties’ forms would have prevented the consummation of a contract when these forms are exchanged, Section 2-207 recognizes that in many, but not all, cases the parties do not impart such significance to the terms on the printed forms. See 1 W. Hawkland, supra; § 1.0903, at 14, § 1.-090301, at 16. Subsection 2-207(1) therefore provides that “[a] definite and seasonable expression of acceptance or a written confirmation . . . operates as an acceptance even though it states terms additional to or different from those offered or agreed upon, unless acceptance is expressly made conditional on assent to the additional or different terms.” Thus, under Subsection (1), a contract is recognized notwithstanding the fact that an acceptance or confirmation contains terms additional to or different from those of the offer or prior agreement, provided that the offeree’s intent to accept the offer is definitely expressed, see Sections 2-204 and 2-206, and provided that the offer-ee’s acceptance is not expressly conditioned on the offeror’s assent to the additional or different terms. When a contract is recognized under Subsection (1), the additional terms are treated as “proposals for addition to the contract” under Subsection (2), which contains special provisions under which such additional terms are deemed to have been accepted when the transaction is between merchants. Conversely, when no contract is recognized under Subsection 2-207(1) — either because no definite expression of acceptance exists or, more specifically, because the offeree’s acceptance is expressly conditioned on the of-feror’s assent to the additional or different terms — the entire transaction aborts at this point. If, however, the subsequent conduct of the parties — particularly, performance by both parties under what they apparently believe to be a contract — recognizes the existence of a contract, under Subsection 2-207(3) such conduct by both parties is sufficient to establish a contract, notwithstanding the fact that no contract would have been recognized on the basis of their writings alone. Subsection 2-207(3) further provides how the terms of contracts recognized thereunder shall be determined.

With the above analysis and purposes of Section 2-207 in mind, we turn to their application in the present case. We initially observe that the affidavits and the acknowledgment forms themselves raise the question of whether Collins & Aikman’s forms constituted acceptances or confirmations under Section 2-207. The language of some of the acknowledgment forms (“The acceptance of your order is subject to . ”) and the affidavit of Mr. William T. Hester, Collins & Aikman’s marketing operations manager, suggest that the forms were the only acceptances issued in response to The Carpet Mart’s oral offers. However, in his affidavit Mr. J. A. Castle, a partner in The Carpet Mart, asserted that when he personally called Collins & Aikman to order *1167carpets, someone from the latter’s order department would agree to sell the requested carpets, or, alternatively, when Collins & Aikman’s visiting salesman took the order, he would agree to the sale, on some occasions after he had used The Carpet Mart’s telephone to call Collins & Aikman’s order department. Absent the District Court’s determination of whether Collins & Aik-man’s acknowledgment forms were acceptances or, alternatively, confirmations of prior oral agreements, we will consider the application of section 2-207 to both situations for the guidance of the District Court on remand.

Viewing Collins & Aikman’s acknowledgment forms as acceptances under Subsection 2-207(1), we are initially faced with the question of whether the arbitration provision in Collins & Aikman’s acknowledgment forms were in fact “additional to or different from” the terms of The Carpet Mart’s oral offers. In the typical case under Section 2-207, there exist both a written purchase order and a written acknowledgment, and this determination can be readily made by comparing the two forms. In the present case, where the only written forms were Collins & Aikman’s sales acknowledgments, we believe that such a comparison must be made between the oral offers and the written acceptances.2 Although the District Court apparently assumed that The Carpet Mart’s oral orders did not include in their terms the arbitration provision which appeared in Collins & Aikman’s acknowledgment forms, we believe that a specific finding on this point will be required on remand.3

Assuming, for purposes of analysis, that the arbitration provision was an addition to the terms of The Carpet Mart’s oral offers, we must next determine whether or not Collins & Aikman's acceptances were “expressly made conditional on assent to the additional terms” therein, within the proviso of Subsection 2-207(1). As set forth in full above, the provision appearing on the face of Collins & Aikman’s acknowledgment forms stated that the acceptances (or orders) were “subject to all of the terms and conditions on the face and reverse side hereof, including arbitration, all of which are accepted by buyer.” The provision on the “Acknowledgment” forms further stated that Collins & Aikman’s terms would become the basis of the contract between the parties

“either (a) when signed and delivered by buyer to seller and accepted in writing by seller, or (b) at Seller’s option, when buyer shall have given to seller specification of assortments, delivery dates, shipping instructions, or instructions to bill and hold as to all or any part of the merchandise herein described, or when buyer has received delivery of the whole or any part thereof, or when buyer has otherwise assented to the terms and conditions hereof.”

Similarly, the provision on the “Customer Acknowledgment” and “Sales Contract” forms stated that the terms therein would become the basis of the contract

“either (a) when signed and delivered by Buyer to Seller and accepted in writing by Seller or (b) when Buyer has received and retained this order for ten days without objection, or (c) *1168when Buyer has accepted delivery of any part of the merchandise specified herein or has furnished to Seller specifications or assortments, delivery dates, shipping instructions to bill and hold, or when Buyer has otherwise indicated acceptance of the terms hereof.”

Although Collins & Aikman’s use of the words “subject to” suggests that the acceptances were conditional to some extent, we do not believe the acceptances were “expressly made conditional on [the buyer’s] assent to the additional or different terms,” as specifically required under the Subsection 2-207(1) proviso. In order to fall within this proviso, it is not enough that an acceptance is expressly conditional on additional or different terms; rather, an acceptance must be expressly conditional on the offeror’s assent to those terms. Viewing the Subsection (1) proviso within the context of the rest of that Subsection and within the policies of Section 2-207 itself, we believe that it was intended to apply only to an acceptance which clearly reveals that the offeree is unwilling to proceed with the transaction unless he is assured of the offeror’s assent to the additional or different terms therein. See 1 W. Hawkland, supra, § 1.090303, at 21. That the acceptance is predicated on the offeror’s assent must be “directly and distinctly stated or expressed rather than implied or left to inference.” Webster’s Third International Dictionary (defining “express”).

Although the UCC does not provide a definition of “assent,” it is significant that Collins & Aikman’s printed acknowledgment forms specified at least seven types of action or inaction on the part of the buyer which — sometimes at Collins & Aikman’s option — would be deemed to bind the buyer to the terms therein. These ranged from the buyer’s signing and delivering the acknowledgment to the seller — which indeed could have been recognized as the buyer’s assent to Collins & Aikman’s terms — to the buyer’s retention of the acknowledgment for ten days without objection— which could never have been recognized as the buyer’s assent to the additional or different terms where acceptance is expressly conditional on that assent.4

To recognize Collins & Aikman’s acceptances as “expressly conditional on [the buyer’s] assent to the additional terms” therein, within the proviso of Subsection 2-207(1), would thus require us to ignore the specific language of that provision.5 Such an interpretation is not justified in view of the fact that Subsection 2-207(1) is clearly designed to give legal recognition to many contracts where the variance between the offer and acceptance would have precluded such recognition at common law.

Because Collins & Aikman’s acceptances were not expressly conditional on the buyer’s assent to the additional terms within the proviso of Subsection 2-207(1), a contract is recognized under Subsection (1), and the additional terms are treated as “proposals” for addition to the contract under *1169Subsection 2-207(2).6 Since both Collins & Aikman and The Carpet Mart are clearly “merchants” as that term is defined in Subsection 2-104(1), the arbitration provision will be deemed to have been accepted by The Carpet Mart under Subsection 2-207(2) unless it materially altered the terms of The Carpet Mart’s oral offers. T.C.A. § 47-2-207(2) (b) [UCC § 2-207(2) (b)].7 We believe that the question of whether the arbitration provision materially altered the oral offer under Subsection 2-207(2) (b) is one which can be resolved only by the District Court on further findings of fact in the present case.8 If the arbitration provision did in fact materially alter The Carpet Mart’s offer, it could not become a part of the contract “unless expressly agreed to” by The Carpet Mart. T.C.A. § 47-2-207 [UCC § 2-207], Official Comment No. 3.

We therefore conclude that if on remand the District Court finds that Collins & Aikman’s acknowledgments were in fact acceptances and that the arbitration provision was additional to the terms of The Carpet Mart’s oral orders, contracts will be recognized under Subsection 2-207(1). The arbitration clause will then be viewed as a “proposal” under Subsection 2-207(2) which will be deemed to have been accepted by The Carpet Mart unless it materially altered the oral offers.

If the District Court finds that Collins & Aikman’s acknowledgment forms were not acceptances but rather were confirmations of prior oral agreements between the parties, an application of Section 2-207 similar to that above will be required. Subsection 2-207(1) will require an initial determination of whether the arbitration provision in the confirmations was “additional to or different from” the terms orally agreed upon. Assuming that the District Court finds that the arbitration *1170provision was not a term of the oral agreements between the parties, the arbitration clause will be treated as a “proposal” for addition to the contract under Subsection 2-207(2), as was the case when Collins & Aikman’s acknowledgments were viewed as acceptances above. The provision for arbitration will be deemed to have been accepted by The Carpet Mart unless the District Court finds that it materially altered the prior oral agreements, in which case The Carpet Mart could not become bound thereby absent an express agreement to that effect.

As a result of the above application of Section 2-207 to the limited facts before us in the present case, we find it necessary to remand the case to the District Court for the following findings: (1) whether oral agreements were reached between’the parties prior to the sending of Collins & Aikman’s acknowledgment forms; if there were no such oral agreements, (2) whether the arbitration provision appearing in Collins & Aikman’s “acceptances” was additional to the terms of The Carpet Mart’s oral offers; and, if so, (3) whether the arbitration provision materially altered the terms of The Carpet Mart’s oral offers. Alternatively, if the District Court does find that oral agreements were reached between the parties before Collins & Aik-man’s acknowledgment forms were sent in each instance, it will be necessary for the District Court to make the following findings: (1) whether the prior oral agreements embodied the arbitration provision appearing in Collins & Aik-man’s “confirmations”; and, if not, (2) whether the arbitration provision materially altered the prior oral agreements. Regardless of whether the District Court finds Collins & Aikman’s acknowledgment forms to have been acceptances or confirmations, if the arbitration provision was additional to, and a material alteration of, the offers or prior oral agreements, The Carpet Mart will not be bound to that provision absent a finding that it expressly agreed to be bound thereby.

III

If, on remand, the District Court finds that the arbitration provision exists as a term of the contracts recognized under this application of Section 2-207, Collins & Aikman’s motion for a stay pending arbitration must be granted despite the fact that this is an action in fraud. In Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 87 S.Ct. 1801, 18 L.Ed.2d 1270 (1967), the Supreme Court held that in passing upon a motion for a stay pending arbitration under 9 U.S.C. § 3, a federal court may not consider claims of fraud in the inducement of the overall contract when the arbitration clause is sufficiently broad to encompass claims of fraud. Rather, in such cases a federal court may consider only claims which relate to the “making” of the arbitration agreement itself. 388 U.S. at 402-404, 87 S.Ct. 1801. In the present case, the language of Collins & Aikman’s arbitration clause is virtually identical to that of the- arbitration agreement in the Prima, Paint case.9 Moreover, although The Carpet Mart challenges the legibility of the fine-print arbitration provision on the reverse side of Collins & Aikman’s forms (which was specifically called to the buyer’s attention on the face of those forms), The Carpet Mart’s claim of fraud relates only to the substitutions for Kodel polyester fibers under the overall contract and ndt to the arbitration clause itself. Therefore, upon a finding by the District Court that the arbitration clause was a term of the contracts recognized under T.C.A. § *117147-2-207 (UCC § 2-207), Collins & Aik-man’s motion for a stay pending arbitration must be granted.

For the reasons set forth above, the case is remanded to the District Court for further findings consistent with this opinion.