clearly stipulates that the prescribed mode of acceptance is the only way to
accept, then another method may be binding, provided that it is does not put
the offeror at a disadvantage.
No prescribed acceptance
If no method of communicating acceptance is stipulated, the starting-point
is that acceptance is made using the same method of communication as the
offeror. However, any reasonable way of replying will normally form a
contract, the responsibility being on the person accepting to ensure that
communication is effective. Lord Denning gave some examples in the
following case.
Waiver of communication of acceptance
One of the principles that came out of Carlill was that as far as a general
offer is concerned the offeror is at liberty to waive communication of
acceptance (that is, to say that communication is not needed on this
occasion). Waiver may be:
- specifically expressed by the offeror, or
- implied (as in Carlill) – the nature of the advertisement implied that a
person buying and using the smoke ball as prescribed who then
contracted ’flu would obtain a reward. The company clearly did not
Offer and acceptance 23Yates Building v Pulleyn (1975)
The offeror asked for acceptance to be by letter using registered or
recorded delivery. The letter was sent by normal delivery, but it made
no practical difference to the offeror, since the letter was delivered on
time, so acceptance by this method was held binding.Entores Ltd v Miles Far East Corporation (1955)
He said that if two people are walking along either side of a river and
a message shouted is obliterated by the sound of a passing aircraft, it is
necessary to repeat the message until the person speaking is sure that
the message is heard. Similarly if a telephone line goes dead, it is
necessary to redial and ensure that the message has been received. The
burden on communication of acceptance is therefore firmly on the
offeree in normal circumstances, and acceptance is effective on receipt.
In Entores a Dutch company accepted an offer by an English company,
and the issue arose of where the contract was formed. It was held to
have been formed in England, since that is where the acceptance was
received by telex.