                                          December 8, 1999



The Honorable Senfronia Thompson              Opinion No. JC-0153
Chair, Committee on Judicial Affairs
Texas House of Representatives                Re: Effect of certain protest words written beneath a
P.O. Box 2910                                 person’s signature on a state document (RQ-0090-JC)
Austin, Texas 78768-2910


Dear Representative   Thompson:

         You ask about the effect of certain protest words written beneath a person’s signature on a
state document. Your letter indicates that you are inquiring on behalfofa constituent, whose interest
in this issue arises from his attempts to submit an “Offer in Compromise” form to the United States
Internal Revenue Service with words such as “forced to sign under threat, duress and coercion” and
“non assumpsit to the contents of this document” written alongside his signature. Letter from
Honorable Senfronia Thompson, Chair, Comm. on Judicial Affairs, Texas House of Representa-
tives, to Honorable John Comyn, Attorney General (July 21, 1999) (on file with Opinion
Committee). He asks about the effect of such words written on a state document, although he does
not ask about any particular state document.        Thus, we consider generally whether a binding
agreement with the state is created if a person writes beneath his signature on a document the words
“forced to sign under threat, duress and coercion” or “non assumpsit to the contents of this
document.”

        In this opinion, we set out the general principles that would apply to a situation such as the
one you describe. Other rules might apply to a particular situation, and whether or not an agreement
is made might depend upon the particular facts of the situation. Thus, we do not determine whether
these words written on a document will create an enforceable agreement in every single case.

        In order to form a binding agreement, there must be a “meeting of the minds” of the parties
to the agreement. In other words, all of the parties to the contract must agree on all of the same
things; there must be mutual assent. See Solis Y. Evins, 951 S.W.2d 44, 49 (Tex. App.-Corpus
Christi 1997, no writ). “There can be no agreement when one party has the intention to make it, but
the other has not.” Zd. As a general rule, if there is not a meeting of the minds on all of the material
terms of the contract, there is no contract.

        The meeting of the minds necessary to form a contract springs from an “offer” and an
“acceptance.”  A contract is not formed until there has been an offer of contract terms from one
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party, and an acceptance of those terms by the other party. See Smith v. Rem, 840 S.W.2d 702,704
(Tex. App.-Corpus Christi 1992, writ denied).

         An offer must be certain and unambiguous.    See Morrow v. De Vitt, 160 S.W.2d 977,983
(Tex. Civ. App.-Amarillo   1942, writ ref d w.o.m.). Certainty is required so that the person receiving
the offer can know exactly what he is being asked to agree to. See id. If a person writes something
such as “forced to sign under duress” or “non assumpsit to the contents of this document” beneath
his signature on a document that is supposed to be an offer, the offeror appears to be saying that he
does not agree to the terms of his own offer. In such a case, it could be said that the offer is
uncertain and ambiguous, and cannot form the basis of an agreement. Thus, these words written
beneath a signature on a document may make the document invalid as an offer.

        In the event a valid offer is made by one party, it must be accepted by the other party in order
for an agreement to be formed. An acceptance must not change or qualify the material terms of the
offer. If it does, the offer is considered to have been rejected and a counteroffer made, and there is
no enforceable agreement unless the counteroffer is accepted. See United Concrete Pipe Corp. v.
Spin-Line Co., 430 S.W.2d 360,364 (Tex. 1968).

         The person to whom an offer is made must communicate his acceptance of the offer. Often,
when an agreement is offered in writing, a person’s signature on the agreement is required to
communicate that person’s acceptance of the terms of the agreement. See Scaife v. Associated Air
Ctr. Inc., 100 F.3d 406,410 (5th Cir. 1996). If a person writes something such as “forced to sign
under duress” or “non assumpsit to the contents of this document” beneath his signature on a
document offered to him, it could be argued that the person qualified the terms of the offer and thus
indicated that he did not accept it. In such a case, there is no meeting of the minds on all of the terms
of the agreement, and thus there is no agreement.

         For example, in a federal case from Kansas, a college professor was offered a renewal of his
employment contract with a reassignment of duties. See HuIlman v. Board of Trustees of Pratt
Community College, 725 F. Supp. 1536 (D. Kan. 1989), aff’d, 950 F.2d 665 (10th Cir. 1991). One
of the terms of the offer was that the professor contest any employment issues by following
established grievance procedures. Id. at 1543. The professor signed the contract, but attached to it
a memorandum stating that “I have signed this contract under protest” and that his signature “should
not be construed as a waiver of any rights I might have to retain the former position or to contest the
reassignment.” Id. The court held that the protest words, coupled with the professor’s expressed
intention to contest the reassignment by any means, instead of by the established grievance
procedure, materially altered the terms of the college’s offer. Id. 1551-52. The professor had
rejected the offer and there was no agreement. Id. Thus, in some cases, certain words written on a
document beneath a signature can make the signature void as an acceptance.

        In other cases, however, it can be argued that where acceptance of an offer is indicated by
a signature, words such as “forced to sign under duress” or “non assumpsit to the contents of this
document” written beneath the signature are merely words of protest that do not qualify or alter the
The Honorable   Senfronia Thompson       - Page 3      (JC-0153)




terms of the offer. This type of “grumbling acceptance,” as it is called, has been found by courts to
be sufficient to form a contract. “An expression of acceptance is not prevented from being exact and
unconditional by the fact that it is ‘grumbling,’      ; but it must appear that the ‘grumble’ does not
go so far as to make it doubtful that the expression is really one of assent     ."ARTHUR L.CORLSIN,
 1 COR~INONCONTRKTS 5 3.30,          at472-75 (rev. ed. 1993).

        For example, in a case from Oklahoma, a college professor was offered an employment
contract that could be accepted by affixing his signature beneath the words “I accept the
responsibilities of the appointment under the terms outlined above.” Price v. Oklahoma CoZlege of
OsteopathicMed. & Surgery, 733 P.2d 1357,1362 (Okla. Ct. App. 1986). The professor signed the
offer, but wrote beneath his signature that he was doing so “under protest” because he objected to
the salary. Id. at 1358. The court held that the professor’s signature on the contract was a clear
acceptance ofthe offer, even with the added protest words. Id. at 1361-62. “The notation amounted
to no more than saying I don’t like your offer, I don’t think it’s right or fair, but I accept it.” Id. at
 1362. Under these circumstances, the court found that the offer was accepted and a binding contract
was formed.

         A person’s conduct might also indicate acceptance of an offer, even if the person’s written
words suggest otherwise. Acceptance of an offer may be shown by performance and acceptance of
benefits by the person to whom the offer was made. See United Concrete Pipe Corp., 430 S.W.2d
at 364; McCarty v. Langdeuu, 337 S.W.2d 407,412 (Tex. Civ. App.-Austin 1960, writ ref d n.r.e.).
For example, in a Massachusetts case, a borrower sought an extension of a loan commitment from
the state housing finance agency. See Massachusetts Hous. Fin. Agency v. Whitney Hous. Assocs.,
638 N.E.2d 1378, 1380-82 (Mass. App. Ct. 1994, review denied). The borrower signed the
agreement for the extension but, because he objected to one of the lender’s conditions, attached a
letter saying that his acceptance of the extension was “signed by me under protest.” Id. at 1380.
When the lender sought to enforce the agreement, the borrower argued that his protest words
constituted a rejection of the condition. Id. at 1380-81. Because the borrower had accepted the
benefits of the agreement, the court held that he could not then disavow the condition:

                The “accepted with prejudice,” communicated no more, i.e., that
                Whitney did not like the arbitrage condition, expected to talk more
                about it, but, grudgingly accepted it in preference to having the
                MHFA commitment expire. For its part, Whitney accepted the
                benefit of the extension documents, namely, the extension of the
                permanent loan commitment, without which the project would have
                been in dire jeopardy.          It lies ill in Whitney’s mouth, after
                obtaining what it needed, to disavow the arbitrage condition.

Id. at 1382.

         As these cases illustrate, whether certain words written beneath a signature in response to an
offer is an acceptance or a rejection of the offer depends upon the factual circumstances surrounding
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the proposed agreement. In some cases the words may stand in the way of an agreement; in other
cases they may not. Consequently, we are unable to say what the effect ofthe words “forced to sign
under threat, duress, and coercion” or “non assumpsit to the contents of this document” will be in
every case. As a general rule, however, these words may indicate that the person signing has not
agreed to the terms of the document, and consequently that there has been no “meeting ofthe minds”
that is necessary to form a binding agreement.

                                         SUMMARY

                       The words    “forced to sign under threat, duress and coercion”
               or “non assumpsit    to the contents of this document” written under a
               person’s signature    on a state document may indicate that the person
               signing has not       agreed to the terms of the document,           and
               consequently that    there has been no “meeting of the minds” that is
               necessary to form    a binding agreement.




                                                Attorney General of Texas



ANDY TAYLOR
First Assistant Attorney General

CLARK RENT ERVIN
Deputy Attorney General - General Counsel

ELIZABETH ROBINSON
Chair, Opinion Committee

Barbara Griffin
Assistant Attorney General - Opinion Committee
