It might help if you describe what an “ordinary retail transaction” looks like.
In any event, to have a contract, you still need offer and acceptance, whether express (by writing or verbal communication) or constructively (implied by conduct).
Buyer goes to an electronics store and sees a flat screen TV with a sticker on it showing a retail price of $1,000. [INVITATION TO OFFER]
Buyer tells seller, I’d like to buy this $1,000 flat screen TV. [OFFER]
Seller says, “OK.” [ACCEPTANCE]
BOOM! Contract.
If the buyer backs out now, the seller could sue for breach with damages of lost profit.
This is straight out of a law school textbook. That’s simply not how contract law works in real life.
Admittedly I’m going on a limb with extreme language here, but it would be an exceedingly exceptional circumstance for any court in the United States to find the existence of an enforceable contract in such a situation and award damages for breach. You’d have to be crazy to even bring such a claim.
Yes, offer and acceptance are basic to contract formation. But offer and acceptance are not rote concepts such as given in this example. Offer and acceptance don’t occur only through words but also through action.
If I understand, you are saying that, regardless of what happens in the retail context leading up to the point of sale, there is no contract until the actual point of sale.
The buyer places the item on the counter. The seller rings it up on the cash register. The seller then asks for payment of the amount shown.
The buyer’s act of handing over the money is the offer and the cashier’s acceptance of the money is the acceptance?
What if the buyer carelessly handed over $800, the cashier then asked for the additional $200, and the buyer then had second thoughts, attempted to back out, and asked to cancel the transaction requesting the $800 back?
You think a court is going to force him to complete a transaction he no longer wants to complete or award the seller $1,000 for a TV the buyer no longer wants? No way. In an ordinary retail context, there is essentially no formation until at least one side has completed performance. Of course the buyer can ask for his $800 dollars back. No court is going to award damages in a case like this. They will say, “seller, you’ve still got your TV, which you can sell to someone else; buyer, you’ve still got your money; no harm, no foul.”
What you are saying is that there may be no actual damages for the breach of a retail contract, not that one was never formed in the first place. Conceptually, those are different issues.
But there is - the time to mitigate the loss of profit from that transaction. The whole reason the seller wants to sell, is to make a profit. By breaching the contract, you are denying them that - from that sale. It is true that they are under a duty to mitigate that loss, and the actual measure of damages may be small if they can sell the object to the very next customer - but it is not nothing. If it was, why would they care about making the sale to you in the first place?
Put it this way - if our farmer has a whole crowd of people wanting to buy his goat, he loses nothing by losing one customer, since he can instantly sell it to the next (mitigation). OTOH, what if through the whole fair, you were the only person who showed any interest? If he loses the sale to you, he has to take the goat back home with him.
You’re proving my point. You can come up with scenarios in which a seller can make an argument that harm has been suffered. But you’re not going to find a court who’s going to enforce a contract in such a case, even if there are contemplable damages. People pull out of routine, day-to-day transactions all the time. If all those situations constituted legal breaches of contract, life would come to a standstill.
But you haven’t given any reasons other than your assertion as to why your point is correct.
Agreed that such cases do not come often to court, and for very good reason - not enough at stake to make it worth anyone’s while. No-one is going to actually sue over such tiny loses, and no retailer in its right mind would waste its time suing its customers in this manner - but that doesn’t mean they would have no case, legally.
davidm, as previously discussed in this thread, the actual bills themselves are likely to survive the goat’s digestive tract intact. The only reason to involve the Treasury Department is because you think they’re “icky”.
When does the offer & acceptance occur? At that point, you have a binding contract.
If BUYER silently takes the TV from the shelf to a cashier, it makes sense that the offer occurs at the time BUYER tenders payment. The tender is the offer. The offer is the amount tendered. The acceptance of the payment is the acceptance of the terms of the contract.
If the amount tendered is less than amount the store is willing to accept, then the cashier is free to reject the offer and hand the money back.
However, if BUYER walks into the store and says to SELLER, “I offer you $1,000 for that TV” and the seller says, “I accept your offer” then the contract is formed before reaching the point of sale. Taking the TV over to the cash register and exchanging money and possession of the good is performance of an existing contract.
If BUYER then tries to cancel at the register, it’s a breach. Although not obligated to do so, SELLER will likely refrain from trying to enforce the contract and agree to mutual rescission, as that might make good business sense.
You seem to be saying that no matter what happens before the point of sale, there cannot be a contract until the point of sale. I don’t understand how you can dismiss the express verbal offer and acceptance in this case.
As far as damages, if the seller is a volume seller, the fact that the seller can keep the TV and sell it to someone else doesn’t mean there was no damage from the breach. Had the buyer actually performed, then the seller would have made TWO sales instead of just one. The measure of damages is the profit seller would have made on the lost sale.
Because it simply does not jibe with customary and expected behaviour. When people go to a retail establishment and ask the price, they do not believe that they are soliciting an offer that will then form a contract with a simple statement of approval. They do not believe so, they do not behave as if they are doing so, they do not expect it to be so. And the same is the true of the retail vendor. It is also customary and expected behaviour to be able to back out of a transaction up until the very point of tendering payment.
The case is different, of course, with arm’s-length transactions, such as through the mail or on the internet. In such case, the vendor expects assurance of payment before transferring possession of the goods. Similarly, the buyer expects assurance of delivery before tendering payment. In both cases, at least one side has completed performance. In addition, there will often be explicit written language supporting the notion of the existence of mutual promises on both sides.
None of this is true in a routine retail transaction. The expectations simply aren’t there. The customary behaviour does not line up with the idea of formation until performance has been accomplished by at least one party.
You’re changing the hypothetical from a firm offer to a price inquiry.
Because nobody treats a retail purchase situation as a “firm offer,” neither the seller nor the buyer. Contract law isn’t magic words. You don’t trick people into making legally enforceable promises.
What’s tricky about “I’ll buy this, thank you”? 
“I changed my mind. I don’t want it.”
IANAL, but my girlfriend recently graduated law school and is currently studying for the Illinois bar exam. I told her about this thread. She read the first handful of posts and decided to address this in a way that would be expected if such a question were to show up on the bar exam. This is what she sent:
You aren’t getting it at several levels.
Firstly this is a legal hypothetical and you are nitpicking the practicalities. Sure, no one would bother enforcing the contract. The money wouldn’t actually be eaten by the goat, and a goat isn’t actually worth $100, either. Why not point that out too? It’s a hypothetical. Why are you bothering with nitpicking in this way? It’s a question designed to elicit a discussion of the underlying legal principles; pointing out practical enforcement details is silly.
Secondly, the OP explicitly says there was an agreement. The buyer agrees to buy the goat for $100. There is no wiggle room here. It is not a question of the buyer making some casual enquiry about price and I have no idea why you would try to alter the hypothetical clearly stated in the OP.
Thirdly, you say:
For a start, why the heck are you talking about a “retail purchase situation”? This is a guy buying a goat at a market. It’s not Walmart (not that it would make any difference to the legal principles involved). I’ve seen litigated enforcement of a verbal agreement to buy livestock before. Admittedly the bulls in question were worth more than $100 but are you seriously trying to suggest that there is some sort of lower cash limit to legal principles?
And then, yes contract is magic words. Accept or make an offer in a situation where someone can enforce it against you and you will pay. I’ve seen verbal contracts that someone wanted to get out of cost them hundreds of thousands of dollars.
I have no Og damned idea what this “trick people into making legally enforceable promises” is about. Where does that come from? The OP says the buyer agrees to buy the goat for $100 and now suddenly this was achieved by trickery? Huh?
See, this is the difference between a law student and someone who actually deals with the law professionally. Legal hypotheticals looked at this way is nothing more than navel gazing. This kind of assertion of “contract” would be kicked out of court so fast your head would spin.
The idea of offer plus acceptance plus consideration equaling a contract is a simplified example of what contract law is really about. It’s about ascertaining the parties’ intention (“meeting of the minds” is a term you might be familiar with).
If the circumstances and custom surrounding a situation are not the kind of circumstances in which people customarily intend or expect to be entering into legally binding agreements, then the magic words of offer and acceptance won’t make it happen. The law is concerned with ascertaining intent. No ordinary, routine conversation about thee price of things is suddenly going to bind people who routinely engage in such conversations and don’t expect or intend to be bound.
No its the difference between recognising a legal hypothetical on a messageboard designed to raise some interesting legal questions and dealing with it accordingly, and being dismissive of the question because the amount stated isn’t (as it happens) large enough to make implementation of legal remedies practical.
As to the rest of your post, I agree with you about intention. Which bit of "agrees to buy the goat for $100. As the buyer takes out his wad of cash in order to hand it to the farmer… " are you having trouble understanding, and why exactly are you still wibbling on about “… routine conversation about the price of things…”?
PERSON1: I offer you $x for this ________.
PERSON2: I accept your offer.
This sounds to me like a definitive communication from each party of an intent to be bound in any context, retail or not. If this conversation occurs before the point of sale, I’d say there’s a contract at the exact moment of the verbal acceptance (excepting the statute of frauds).