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Corbin on Contracts

Copyright 2007, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

PART I FORMATION OF CONTRACTS

TOPIC A OFFER AND ACCEPTANCE

CHAPTER 3 ACCEPTANCE AND REJECTION OF OFFER

1-3 Corbin on Contracts § 3.19

§ 3.19 Can Offeror Make Silence Operate as Acceptance?

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It should here be plainly set forth that an offeror has no power to cause the silence of the offeree to operate as an acceptance when the offeree does not intend it to do so.n1 The offeree's conduct, coupled with the silence may be such as to make the silence operative.n2 The offeror's own language or other conduct may be such as to make the offeree's silence a sufficient acceptance binding upon the offeror. But an offeror can not, merely by saying that the offeree's silence will be taken as an acceptance, cause it to be operative as such. The offeror cannot force the offeree to take pen in hand, to use a postage stamp, or to speak, under penalty of being bound by a contract by not expressing a rejection. It is substantially the same case as where an offeror attempts to give the meaning of an acceptance to some other ordinary act of the offeree that the latter wishes to do without giving it such a meaning. If A offers land to B for a price, saying that B may signify acceptance of the offer by eating breakfast or by hanging out a flag on Washington's birthday or by attending church on Sunday, A does not and cannot thereby make such action by B operative as an acceptance against B's will. If B shows the absence of an intent to accept, and that the breakfast was eaten merely because of hunger, or the flag was hung out because of patriotism, or attendance at church was to hear the sermon, no contract has been made even though A truly believed that B meant to accept.n3

It is a different question, however, whether an offeror can make the offeree's mere silence operative as an acceptance as against the offeror when the offeree desires that it should so operate. In a few cases, the offeror has written to the offeree that the offeree may accept merely by remaining silent, without troubling to send notice of any kind or doing any other act. In two such cases, the offeree decided to accept, remaining silent as the specified mode of accepting. Yet the court held that no contract had been made.n4

In one aspect, this seems to be not unreasonable. The opposite rule, in such cases, would enable the offeree to await the event, and to deny the fact of acceptance if the contract now appears to be disadvantageous, or to assert the fact of acceptance if appearances are to the contrary. This argument, however, proves too much. It applies with equal force, to any positive act that might reasonably be performed even though no offer has been made, and that has no more probative force to establish assent than to establish some other fact. Whether or not it would be so applied may be regarded as doubtful. A strong argument in favor of holding the acceptance good is that the offeror has no one else to blame if the terms of the offer put the offeror at the mercy of the offeree, and that the offeror should not be permitted to escape liability when the terms of the offer have induced the offeree to believe that there is a contract and to act in reliance thereon.n5 The weight of these opposing arguments can not be determined with certainty, but it will be a rare case where the offeree has not done some overt act which indicates an intention to accept, and in such case the courts will undoubtedly hold that the acceptance is good.n6 But, ''[e]ven though the intent to accept is manifested only by silent inaction ... the offeror who has invited such an acceptance cannot complain of the resulting uncertainty.''n7 In any case the offeree has the burden of proof on the question of intent to accept.

Legal Topics:

For related research and practice materials, see the following legal topics:

Contracts LawFormationAcceptanceMethods of AcceptanceSilence

FOOTNOTES:

(n1)Footnote 1.

N.Y. - Albrecht Chem. Co. v. Anderson Trading Corp., 298 N.Y. 437, 84 N.E.2d 625 (1949) . Restatement (Second) of Contracts § 69, ill. 2.

(n2)Footnote 2. See § 3.18 above; §§ 3.20 and 3.21 below.

(n3)Footnote 3. In Western Concrete Structures Co. v. James I. Barnes Constr. Co., 206 Cal.App.2d 1, 23 Cal.Rptr. 506, 513 (1962) , Western submitted a bid on concrete work to Barnes the principal contractor for a State building. On the back of this bid made on a printed form was a provision in fine print: ''Listing the Seller [Western] in the contractor's bid ... constitutes an acceptance of this proposal.'' On Western's proposal appeared ''ACCEPTED for ___________________by ___________________.'' Barnes did not add its signature and was not aware of the fine print on the back. Barnes listed Western, as subcontractor, in its bid to the State, and its bid was accepted by the State. Barnes submitted a subcontract to Western, varying the terms of its proposal, to which Western refused assent. With the assent of the State, Barnes substituted a different subcontractor. The court held that the fine print provision was ineffective, and that Barnes' listing of Western was not operative as an acceptance. In this case, the plaintiff suggested an alternative mode of acceptance by Barnes, but he did not effectively communicate it to Barnes. Barnes performed the suggested act (by which a bilateral contract might have been consummated), but he had no sufficient reason to know that it had been suggested. Even if he had been aware of the provision in fine print, it is not certain that under all circumstances the listing would operate as an acceptance.

(n4)Footnote 4.

N.H. - Prescott v. Jones, 69 N.H. 305, 41 A. 352 (1898) .

Eng. -Felthouse v. Bindley, 11 C.B.N.S. 868 (1862).

In Favrot v. Pertuit, 144 So.2d 477 (La.App.1962) , a lease provided that, if the lessor served a notice of increase of the rent 90 days prior to termination, the lessee's failure to give notice of rejection 60 days before termination should operate as a renewal of the lease for a second year at the increased rent. The lessor gave notice of increase as provided and the lessee gave no return notice. The court held that the lessee was bound for the second year. Observe that the lessee's silence was not the acceptance of an offer to renew. The written lease bound the lessee for a second year at an increased rent on two conditions, notice by the lessor and failure of notice by the lessee. These conditions were fulfilled. If the lessor's notice is regarded as an offer of a renewal, the lessee had agreed in advance that his silence should operate as an acceptance.

(n5)Footnote 5. The American Law Institute has adopted this rule in spite of the two decisions to the contrary. See Restatement (Second) of Contracts, § 69(1)(b). The first Restatement had the same formulation in § 72(1)(b).

(n6)Footnote 6. In Wood & Brooks Co. v. D.E. Hewitt Lumber Co., 89 W.Va. 254, 109 S.E. 242, 19 A.L.R. 467 (1921) , the plaintiff ordered 500,000 feet of lumber, stating terms and saying ''If you cannot deliver as ordered please advise us immediately.'' Without notification of acceptance, the defendant shipped 160,000 feet within the time specified and requested inspection. His silence, plus these and other circumstances, justified the jury in finding an implied promise to fill the order.

(n7)Footnote 7. Restatement (Second) of Contracts § 69 comment c.