You are an Associate Justice of the Supreme Court of Nowhere. The case of Millcreek Corporation u. Simmons, Executor, is now under advisement. Set out below are draft opinions by our colleagues. You are the swing vote in the case. what is a short opinion in which you either affirm or reverse the courts below and give reasons for your decision.

Beginning in 1989 the plaintiff, a wholesaler of building supplies, sold on credit a number of items to Bishop, a house painter. Bishop was slow in paying and appeared to be in some financial difficulty, and so in 1990, Millcreek refused to sell to Bishop unless he paid cash or provided suitable security. Bishop's father was a retired building contractor of some wealth who lived some 300 miles away. Bishop provided Millcreek a written guaranty agreement, dated February 1, 1990, in which his father promised that if, in the next six months, Millcreek extended credit to Bishop in an amount not to exceed $8,000, he (the father) would pay Bishop's obligation to Millcreek if Bishop failed to do so when the obligation was due. After calling the elder Bishop's attorney to verify the signature, Millcreek accepted the guaranty as appropriate security.

From February 5 through March 13, Millcreek made five separate credit sales to Bishop. Three occurred after March 8, when, unknown to Millereek (but known to Bishop), the elder Bishop had died. The amount involved in these three transactions totaled $5,000. On March 13, Millcreek received a letter from the elder Bishop's executor, informing it of the death and requesting a surrender of the guaranty. Later, after Bishop failed to pay the $5,000 obligations due to insolvency, Millereek brought suit against the executor to recover on the guaranty contract. The trial court, at the conclusion of the evidence, granted the executor's motion for a judgment on the ground that the guaranty constituted an offer for a series of separate contracts and that the death of the offeror on March 8 automatically terminated the offer with regard to sales made thereafter. The intermediate appellate court affirmed and Millcreek has appealed.

ALTMAN, J. (for affirmance). I am of the opinion that the judgment below should be affirmed. The law is clear. An offer is terminated by the death of the offeror before an acceptance occurs, even if the offeree is unaware of that death. This rule finds consistent support in the precedents of this and other states and in the Restatement of Contracts of the American Law Institute. See, e.g., Restatement (First) 48; Jordan v. Dobbins, 122 Mass. 168 (1877). As one court put it: "This rule has been criticized on the ground that under the modern view of the formation of contracts, it is not the actual meeting of minds of the contracting parties that is the determining fact, but rather the apparent state of mind of the parties embodied in an expression of mutual consent; so that the acceptance by an offeree of an offer, which is apparently still open, should result in an enforceable contract notwithstanding the prior death of the offeror unknown to the offeree. On the other hand, it has been forcibly suggested that ordinarily the condition is implied in an offer that the offeror will survive to supervise the performance if his offer is accepted, and therefore an acceptance after death is ineffective even though the acceptor be ignorant of the offeror's death. ... These conflicting views, however, were given consideration in the preparation of the Restatement, and the rule announced was adopted as representing the weight of authority and professional opinion." Chain v. Wilhelm, 84 F.2d 138, 140 (4th Cir. 1936). Accord Restatement (Second) 48.

The guaranty, properly interpreted, was an offer looking forward to a series of separate acceptances. No contract was formed until Millcreek had Actually extended credit to Bishop within the limits of the guaranty. Although the decedent agreed that the guaranty should last for six months, Millcreek gave no consideration to support this promise. As such, the agreement to keep the offer of guaranty open for six months was not enforceable.

From these rules it logically follows that the offer to guarantee Bishop's debts was terminated by the offeror's death on March 8, and the judgment below is affirmed.

OLIVER, J. (for affirmance). I concur in the majority opinion written by Justice Altman, but for different reasons. Surely we can agree that a sound judicial decision cannot be made from logic and logic alone. As Justice Holmes said, "the life of the law has been experience, not logic." I feel strongly that law in general and contract law in particular exists to serve human needs and that the rules of contract must constantly be adjusted and adapted to the human conditions which produce the disputes. But there is no evidence of those "human conditions" in this case and the court has no way of knowing what impact the rather clear rule that death terminates an unaccepted offer has had upon the planning and other relevant behavior of contracting parties. Do the parties take this rule into account when they negotiate guaranty contracts? What would be the impact upon business practices a be rule were overturned? There are no answers to these questions contained in the record before us. Since the rule has a long history of acceptance in the law and since the effect of its alteration by this court uncertain, I am hesitant to intervene at this time and change the law. The risk of death is well known to all and surely the plaintiff in this case is just as capable as the decedent to make provision in the agreement or otherwise against the risk of death. If change is needed it should come from the legislature, not the court.

ROSCOE, J. (against affirmance). It is obviously unfair to leave the risk o death upon the plaintiff in this case. The plaintiff relied in good faith upon written promise of guaranty without actual knowledge that the guarantor had died. The plaintiff had no reason to know of the death--the guarantor lived 300 miles away and no method of quick notice was available. A basic policy of the law of contracts is to protect the reasonable expectations of parties to whom promises have been made. See Corbin 54. Application of the old rule in this case would impair this policy and produce an unfair result in this case. Neither result would, in my mind, be sound.

But we do not have to change the law in this case. A realistic construction of the writing signed by the decedent persuades me that an offer looking forward to a bilateral contract accepted by the first extension of credit was made. Thus, when the plaintiff made the first extension of credit on February 5, he impliedly promised that during the life of the guaranty he would extend credit up to the $8,000 limit to Bishop. See Restatement Second 38 53(1), 54(1) and 62. Thus, the decedent died during the performance of an existing bilateral contract, not before an outstanding offer had been accepted. Or, if the bilateral contract analysis is unsound, the court should, after the first extension of credit is made, imply a promise to hold the guaranty open for six months. Restatement (Second) 87(2). See 88. In either case, thus, the question is whether obligations to pay money incurred after death but when the plaintiff had no knowledge of the death are enforceable against the Estate. The answer is "yes." See Restatement (Second) 262. Although death of one contracting party may discharge some contracts, when the other party has fully performed and the obligation is to pay money alone, the obligation will not be discharged. In my view, the court below erroneously construed the guaranty writing and committed other material errors of law. The judgment below should be reversed and a final judgment entered for the plaintiff.

EARL, J. (against affirmance). The rule of law in dispute here is of ancient vintage and, presumably, served some legitimate purpose in a time when contracts were more personal and a "subjective" theory of relationships seemed to dominate. But in this day of impersonal, complicated, and widespread commerce, the old rule is anachronistic. It is but another example of "slow moving" law getting out of joint with ever changing life. At the same time, the rule seems to provide a rather arbitrary protection to promisors who die without considering the interests of promises- -those who rely on promises. Assuming that both parties have legitimate interests to protect, if they have not provided for the risk of death clearly in the agreement, the question is whether the current rule provides a fair allocation of risk in the circumstances.

The question is not without difficulty. If wo limit, as we must, the problem to contracts of guaranty (and not try to over-generalize), we find almost no evidence in the record about business practices and methods of rink allocation in this particular setting. Perhaps it is enough to say that the burden in on the plaintiff to show clearly that the old rule produces disruptive and unfair results when applied to guaranty contracts, especially when the decedent was not compensated for the risk he assumed. As the defendant Executor forcefully argued, why should the estate make payments to the detriment of lawful heirs for credit extensions which occurred after death and for which the estate received no valuable exchange? This makes the point of Justice Oliver in a lightly different manner.

Even so, it seems clear that in the absence of clear agreement by the parties allocating the risk and other compelling social policies, the general purpose to be achieved by these rules of offer and acceptance should be to facilitate and promote ongoing commercial transactions. Without a strained construction of the writing, the parties contemplated a six-month period where the plaintiff probably would be extending credit to Bishop. They were at a distance, and it is unrealistic to expect the plaintiff to telephone the decedent or check the obituary column in the newspaper before every extension of credit. The plaintiff honestly and without reason to know of death, did precisely what the written guaranty permitted extended credit to Bishop in reliance upon the decedent's promise. In this context, at least, where both parties were equally capable of providing against the risk in the contract, there seems to be no reason for the arbitrary preference given to the decedent. The broader policy concern for smooth, dependable commercial activity supports the plaintiff's contention that the rule should be changed, and we would so hold. In guaranty contracts, at least, where death occurs before the extension of credit but the promise acts in good faith and without reason to know, the estate must pay these obligations. This rule is realistically attuned to the needs and problems of the parties. It rejects mechanical applications of the old and strained constructions in order to put the law more solidly into the life around it. The result is not clearly inefficient unless the plaintiff was the "least cost" risk avoider. See Murray on Contracts 124-26 (4th ed. 2001) (a relic of the obsolete view that contract requires a "meeting of the minds"). See also Val D. Ricks, The Death of Offers, 79 Ind. L. J. 667 (2004).