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The law governing contract formation is distinct from that of contract performance.  The Minnesota Supreme Court has recognized that distinction in stating that '[b]ecause of strict rules governing offer and acceptance, which require that an acceptance be in terms of the offer, we are reluctant to follow by analogy rules laid down with respect to contracts already formed. In passing upon questions of offer and acceptance, courts may wisely require greater exactitude than when they are trying to salvage an existing contract.' Henry Simons Lumber Co. v. Simons, 232 Minn. 187, 193-94, 44 N.W.2d 726, 730 (1950).


States differ in whether they recognize waiver of a term for acceptance. Compare Sabo v. Fasano, 154 Cal. App. 3d 502, 201 Cal. Rptr. 270, 271 (Cal. Ct. App. 1984) (recognizing waiver of defect in acceptance); Kansas City v. Indus. Gas Co., 138 Kan. 755, 28 P.2d 968, 970 (Kan. 1934) (same); Beirne v. Alaska State Hous. Auth., 454 P.2d 262, 264-65 (Alaska 1969) (same); with 22 West Main St., Inc. v. Boguszewski, 34 A.D.2d 358, 311 N.Y.S.2d 565, 567 (N.Y. App. Div. 1970) (viewing late acceptance as counteroffer); Morrison v. Rayen Inv., Inc., ...

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