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Contract | Formation

Acceptance: Communication

Revision Note | Degree

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Introduction

  • general rule: acceptance must be communicated

    Facts:

    • plaintiff (P) sent an offer by telex to purchase copper cathodes from defendant (D), D accepted by telex

    Issue:

    • jurisdiction issue: where had acceptance occurred?

    Held:

    • court looked at formation of the contract and established principle acceptance must be communicated.
    • Denning LJ: Suppose, for instance, that I shout an offer to a man across a river or a courtyard but I do not hear his reply because it is drowned by an aircraft flying overhead. There is no contract at that moment. If he wishes to make a contract, he must wait till the aircraft is gone and then shout back his acceptance so that I can hear what he says. Not until I have his answer am I bound....

Method

  • offeror may stipulate mode of communicating acceptance and offeree must comply or use equally effective method

    Tinn v Hoffman & Co. (1873) 29 LT 271

    Facts:

    • D offered to sell P iron and requesting reply by return of post

    Issue:

    • did acceptance have to be by post?

    Held:

    • Honeyman J: an equally expeditious method will suffice,eg. telegram or verbal message
  • an equally effective method will not suffice if offeror has made clear a particular method is required

    Yates Building Co. Ltd v RJ Pulleyn & Son (York) Ltd (1975) 237 EG 183

    Facts:

    • D gave P option to purchase land, stating notice of acceptance should be returned by registered or recorded delivery
    • P returned notice by ordinary post, D refused notice stating: .. the option agreement provides for notice to be sent by a registered or recorded delivery post. Your letter was not so sent...

    Issue:

    • was the acceptance sufficient?

    Held:

    • no enforceable contract, was a precise requirement notice had to be sent by registered or recorded delivery post, P did not comply

Third party

  • a third party may purport to accept an offer

    Powell v Lee (1908) 99 LT 284

    Facts:

    • P applied for a job as a headmaster
    • a third party at the school, informed P was appointed, without authority

    Issue:

    • aan a third party communicate acceptance?

    Held:

    • third party must be authorised to communicate acceptance

Silence

  • general rule: silence and mere inactivity do not constitute acceptance
  • offeror cannot say that unless offeree communicates a rejection he will be deemed to have accepted, onus on offeree to accept not reject

    Facts:

    • P wanted to purchase a horse from his nephew, P stated: If I hear no more about him, I consider the horse mine at £30 and 15s
    • nephew did not reply but told D not sell the horse, D sold the horse at auction
    • to sue D, under tort law, P had to show he had contract for horse

    Issue:

    • was the nephew's silence capable of being acceptance of P's offer?

    Held:

    • no binding contract: P could not impose offer upon his nephew and require him to reject it, nephew had not communicated acceptance
    • decision criticised: nephew was not unwilling offeree (in need of protection by rule that mere silence is not consent) and had indicated accpetance by telling D not to sell, not been overruled
  • offeree may be able to choose to be bound by silent acceptance

    Facts:

    • a dispute over tax

    Issue:

    • question of whether silence could constitute acceptance featured but was not essential to decision

    Held:

    • Gibson LJ obiter: Where the offeree himself indicates that an offer is to be taken as accepted if he does not indicate to the contrary by an ascertainable time, he is undertaking to speak if he does not want an agreement to be concluded. I see no reason in principle why that should not be an exceptional circumstance such that the offer can be accepted by silence...

Exception

  • offer of a unilateral contract to public at large (advert) can be worded to waive need to communicate acceptance prior to claim

    Facts:

    • D's advert stated: £100 reward will be paid... to any person who contracts influenza after having used the ball... according to the printed directions supplied...
    • P's claim was refused and D argued P had not communicated notice of her acceptance

    Issue:

    • did P communicate acceptance?

    Held:

    • the wording of the advert meant P did not have to communicate acceptance
    • D did not expect every customer to contact them on purchasing item, rather only those who used product as directed and then caught influenza
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