Tender

1 In this report we examine a word that most people use correctly in adjective and noun forms, but incorrectly as a verb transitive — the word “tender”.

2 Let’s look at examples of each form.

3 TENDER: (adjective); easily malleable or movable, yielding or unresisting, i.e. “This meat is tender.”

4 TENDER: (noun); a thing that helps to sustain another thing its capacity to operate, i.e. Naval officer says “Our tender (our resupply vessel) should arrive soon.”

5 TENDER: (verb transitive); a motion or inclining toward; an initiating movement, i.e. “Please tender your payment directly to the manager.”

6 The root of TENDER is “tend”, meaning beginning action or motion. If you "tend" toward obesity, you are beginning to get fat.

7 Our focus in this report is tender’s verb-transitive form. This form of "tender", used almost exclusively in the fields of law and finance, has a narrow but very important meaning.

8 TRANSACTIONS & TENDERS

9 We might say a transaction begins when one party offers something for sale, and another party indicates his or her interest in purchasing it.

10 Let’s explore the ways a prospective purchaser indicates his willingness to buy something.

11 If you go to a marketplace and see a product you want, you might ask the seller what he is asking for it.

12 Let’s say he answers, “five Dollars”. Let’s further assume you have enough money on your person to pay his asking price.

13 You remove the exact amount from your pocket, hold it out in your hand in plain view, with your arm and hand extended (ex-tend-ed) toward him.

14 You are tendering five Dollars toward consummating the deal. You tender the payment by placing the money in motion toward the seller.

15 Now suppose in response to your question about the price the seller wants for his product, he answers, “What’ll you give me”?

16 You might say, “I’ll give you five Dollars.”

17 Upon saying this you made an offer but not a tender because nothing (no thing) was extended (ex-tend-ed) from you toward the seller.

18 So in tenders, things of acknowledged worth are placed in motion toward the seller, the in-tend-ed receiver of the things of worth.

19 In offers, prices are offered by prospective buyers but nothing is placed in motion by the buyer to the seller.

20 The next time you see of hear someone claiming to have made a “tender offer” for something, smile to yourself.

21 He has just claimed to have made an offer which might be easily poked or chewed!

22 Suppose you and I are talking one day and you tell me that you have bought a car-washing facility.

23 I respond by saying my car needs a washing and I ask you how much you charge for washing cars.

24 You tell me $10.00 — to which I reply, “ Gee, I don’t have any money with me today, but I’ll give you this transistor radio instead,” as I pull a radio from my briefcase and extend it in the palm of my hand toward you.

25 I tendered a specific transistor radio to you in exchange for having my car washed.

26 You could examine the radio closely, pay attention to its various physical characteristics and even see how heavy it is or how well it works.

27 But suppose I had left the radio at home. I might say: “Gee, I don’t have any money with me today, but I have a nifty transistor radio at home. I’ll give you the radio in trade for a wash job for my car.”

28 In making that statement, I offered something but I didn’t tender anything.

29 I didn’t tender the radio because I didn’t place it in front of you.

30 You couldn’t examine it and you couldn’t be sure of either what it looked like or even if it worked.

31 LEGAL & ILLEGAL TENDERS

32 Now let’s take another look at the scenario above. Suppose I didn’t own a radio, but I had a small calculator with me.

33 I could have tendered the calculator.

34 Or I might have had only $8.00 with me.

35 If I pulled that $8.00 from my pocket and presented it to you saying “This is all I have today. I will give it to you if you will accept it for a wash job”, I would have tendered $8.00 to you.

36 The transistor radio, the calculator, and the $8.00, are equally usable in legal tenders.

37 Most tenders are called legal tenders because they are offered to pay for a product or service that is legal.

38 Conversely, an illegal tender is one made in consideration or payment for the commission of an act which is not legal, that is, which is a crime.

39 As an example of an illegal tender, suppose someone approached you and whispered, “I’ll give you this digital watch — (as he holds one out to you) — if you’ll slash the tires of that car over there”, gesturing toward a blue sedan parked nearby.

40 Since slashing tires is a crime, the stranger’s tender to you is illegal. The digital watch itself isn’t illegal but the stranger’s ACTION — tendering something to get a crime committed — is an illegal tender.

41 Here’s another aspect of tenders.

42 Suppose you washed my car after I had tendered the radio, but after the car was cleaned I changed my mind about giving you the radio and tried to get you to accept my calculator instead.

43 If you insisted on getting the radio, but I insisted on substituting the calculator instead, you could take me to court for my breach of our verbal contract.

44 The court would undoubtedly order me to give you the radio, telling me that since I had made a legal tender that was accepted, a contract was established that I must honor or be held in contempt of court.

45 Maxim: The acceptance of an offer makes a contract.

46 Now suppose you go ahead and slash the tires of the blue car. Then, suppose the stranger says, “Gee, you sure did a nice job on those tires, but I have decided to give you this calculator instead of the digital watch,” as he pulls one from his pocket, “Okay?”

47 You say, “Absolutely not, Mister! You tendered the watch; and that’s what you gotta give me, period!”

48 Well, let’s say the stranger responds by saying, “Look, the calculator is worth more than the watch, and besides, the watch is an old family heirloom, so here’s the calculator instead, take it or leave it!”

49 Away you go to court and the same judge hears the case.

50 You might be surprised with the judge’s response to your complaint. First, he’s going to have the bailiff handcuff and book the two of you on criminal charges.

51 And as you’re being led out of the courtroom you might hear the judge say, “For your information, Mister, there’s no such thing as a legal tender for the commission of a crime!”

52 In legal contemplation, many things may be used to make legal tenders, but an object that can be used in a legal tender can also be used in an illegal tender to pay for an act prohibited by law.

53 From this and our other examples we see that a tender is not a physical thing — a tender involves a physical thing.

54 A tender is an EVENT, the ACTION of holding a thing out toward a prospective recipient.

55 Only colloquially do we refer to the thing tendered to be the tender.

55 SMALL WORDS; GREAT SIGNIFICANCE

56 To complete our coverage of TENDER look closely at these three little words: “A”, “AN”, and “THE”.

57 These words are called articles and one of them must almost always be placed in front of these words or phrases and words: legal tender, illegal tender, legal offer, illegal offer, describe tender and offer.

58 In our courtroom scenes, the judge might have said:

1. Tire-slashing case: “There is no way to make A legal tender for the commission of a crime.”

2. Tire-slashing case: “THE tender in this case was illegal.”

3. Car-washing case: “The respondent made A legal tender to the plaintiff.”

4. Car-washing case” “The attempted substitution of the calculator for the radio does not mean that THE initial tender of the radio, once accepted by the seller, can be changed.”

5. (Tire-slashing case) “A legal tender was not made.”

59 Notice that the words legal and illegal are the adjectives used to describe the types of offers or tenders.

60 If no adjective is used, the assumption is that the offer or tender is legal.

61 But notice how the judge used the articles, “A”, “AN”, and “THE”.

62 DEFINITE & INDEFINITE ARTICLES

63 “A” and “AN” are indefinite articles and “THE” is a definite article — a defining article.

64 To illustrate their differences, consider this: If I told you that I saw A bird yesterday, you would correctly understand that I had seen one bird, but you would have no idea which one of the earth’s billions of birds I had seen.

65 However, if I said I saw THE yellow bird that sings every morning for Richard M. Nixon, that was featured on the six-o’clock news, on Channel 4 last night, you would definitely know which bird I had seen.

66 These examples show how a definite article is used to give meaning to a sentence which would otherwise be vague.

67 MISSING ARTICLES

To illustrate further the necessity of an article (“A”, “AN”, or “THE”) consider this example of a meaningless sentence:

68 "I saw bird yesterday."

Because no A or THE is placed before bird, my utterance lacks specific meaning, especially at law.

69 Here’s another example of a meaningless sentence:

70 "John made legal tender to Charles."

71 As structured, because no A or THE was placed before the word legal, this sentence has no meaning at law or anywhere else.

72 But the sentence would have had clear meaning at law and elsewhere if it had been structured thusly . . .

73 “John made A legal tender to Charles.”

74 Or, “John made THE legal tender to Charles.”

75 In other words, the phrase legal tender of and by itself, has no meaning, either in legal contemplation or in any other formal usage.

76 There are, however, two colloquial (informal) uses of the phrase legal tender which do convey clear meaning.

77 Let’s look at those uses and see how they came into existence.

78 COMPELLED ACCEPTANCES & BAD HABITS

79 Before the founding of the American Republic, courts all over the world had to contend with disputes related to the substance of payment — the substance that would constitute the correct or agreed-upon thing that was to be paid by a debtor to a creditor so that both parties would receive justice.

80 Although the courts were generally successful in serving the ends of justice, the written descriptions of court opinion were somewhat complex, and the public tended to describe those positions in purely colloquial ways, preferring the less cumbersome language and form of every day speech over the precise scholarly speech of those learned in the law.

81 These colloquialisms were often legally imprecise or harmfully incomplete but that did not mean they were not used in informal conversations.

82 On the contrary, because they were used so often in informal conversation, they became supposedly correct and the law in the public mind — through repetition.

83 Let’s hereafter examine a few colloquialisms in the context of how they came into existence.

84 When you see how they were derived, you may understand how harmfully incorrect they are and what trouble they’ve caused.

85 May the grace of our Lord Jesus Christ be with you all. Amen.