Offeree silence and contractual agreement.

Austen-Baker, Richard (2006) Offeree silence and contractual agreement. Common Law World Review, 35 (4). pp. 247-267. ISSN 1473-7795

Abstract

This article considers the mechanics of acceptance in the law of contract, focusing on the question of whether the silence of an offeree can effect acceptance. It finds the rule in Felthouse v Bindley (1862) alive and well, but creating problems for judges anxious to find agreements in place. The article considers whether there is, as sometimes suggested, a ‘duty to speak’ and dismisses this, along with any other supposed exceptions to the rule, concluding that silence cannot effect acceptance, but that conduct can do so unless an offeree ‘speaks’ to contradict inevitable inferences from conduct. The article also argues that acceptance as such is not required for agreement, but rather the communication of apparent acceptance is the required element which, taken together with an offer, forms an agreement.