expect the user to contact them and tell them that the product was being
used or that a bout of ’flu seemed to be starting!- By conduct, as in Day Morris v Voyce (2003) where a seller of property
was held to have accepted an estate agent’s offer to market the property
by letting the agent go ahead with advertising it and showing potential
buyers around.
Silence
Silence alone is not a valid acceptance. The following case, already
discussed in Chapter 1, is the usual authority for this.
Various issues arise in this case. Clearly, if A offers B £500 for B’s car, and
B says nothing on the subject, there is no valid contract. Similarly, if B
writes a letter to A, offering to sell the car, and A does not reply, there is no
contract. If, however, A lets someone else know that he is about to buy the
car, and later goes to collect it, the sale will no doubt proceed as if
communication had taken place. It was probably the presence of the third
party which influenced the decision in Felthouse v Bindley. An innocent
genuine third party (a bona fide third party) is given high priority generally
in law, and there is no reason why the eventual purchaser, who paid good
money for the horse, should suffer. It could also be argued that the offeror,
in this case the uncle, started this round of negotiations, and took on board
the risk of not knowing whether the contract had been concluded by the
wording of his letter.
There is also an important principle that an offeror should not be able to
limit an offeree’s freedom of action, nor impose on him an unwanted
contract. For instance, it would not be fair if an offeror stipulated that an
offer would be considered accepted if the offeree arrives at his place of
work in the morning, or by doing some other necessary everyday act.
The case does, however, contradict the idea that acceptance may be by
conduct, which could be a silent but clear act indicating agreement. Future
case law may throw more light on this, but the present position is that,
24 Contract law
Felthouse v Bindley (1862)
An uncle wanted to buy his nephew’s horse, and after discussion over
price, wrote saying, ‘If I hear no more about him, I consider the horse
is mine at £30.15s’. The nephew did not reply, but was clearly happy
about the arrangements as he told the auctioneer that the horse was
sold. The auctioneer mistakenly sold the horse to a third party, and the
uncle sued the auctioneer to recover the horse. The court held that there
had been no communication of acceptance by the nephew to the uncle,
and therefore there was no contract between the two of them.