- If a person does not know of an offer he cannot claim to have accepted
it, even if he performs what appears to amount to an acceptance (R v
Clarke). - If it is clear that a person had forgotten about an offer, this may be
considered the same as not having known about it (R v Clarke).
Acceptance via the post
Firstly, it should always be considered whether it is reasonable to use the
post to accept an offer. Each case is different, but the following factors
should be considered:
- Whether the offer was made by letter. If so, then it is usually acceptable
to reply by letter, unless the offer specifically says that the post may not
be used – see Yates Building v Pulleyn (see p. 23 above). - Whether the offeror states that acceptance can be made by post, even
though the offer may have been made in some other way. - Whether previous negotiations, or ‘course of dealings’, between the
parties have established that it is normal to reply by post.
If one of these situations apply, then it will generally be considered
reasonable to accept by post. On the other hand, if the offer has been made
in some other, more direct way, for example by telephone, by word of
mouth, or in some other form indicating a fast reply, then postal acceptance
would not normally be considered reasonable, unless the offeror says so.
Also, it would not be reasonable to post an acceptance if the offeree knows
that postal delays are likely through strikes, floods, etc. Cases will clearly
depend on their own facts, as each will be slightly different, but one
example came before the court in the following case.
Offer and acceptance 27Henthorn v Fraser (1891)
An offer was made in person, but it was held reasonable to accept by
post, given that the two parties worked in Liverpool, but one lived in
Birkenhead, and a reply in person would have involved travelling,
including a return ferry-trip across the river Mersey. It was said by
Lord Herschell that use of the post would be reasonable where ‘it must
have been within the contemplation of the parties that, according to the
ordinary usages of mankind, the post might be used as a means of
communicating the acceptance of an offer’. So it is important to
establish whether acceptance by post is reasonable in a particular case,
because the postal rule will then apply.