Chapter 7Introduction to the law of contractMore effective control of ‘inertia selling’ was intro-
duced in the form of the Unsolicited Goods and Services
Act 1971, which has now been updated and extended by
the Consumer Protection (Distance Selling) Regulations
2000 (SI 2000/2334). The regulations outlaw the supply of
unsolicited goods and services to consumers. The recipient
of unsolicited goods may treat them as an unconditional
gift. It is also an offence to make a demand for payment
from a consumer for unsolicited goods or services.
Felthousev Bindleywould seem to suggest that only
an oral or written acceptance will be valid. However,
acceptance may be implied from a person’s conduct.
Examples of acceptance by conduct include returning
a lost dog in a reward case, or using a smoke ball in the
prescribed manner in Carlillv Carbolic Smoke Ball Co.
Examples of more recent cases involving an offer being
accepted by conduct include Day Morris Associatesv
Voyce(2003) in which the Court of Appeal held that the
claimant estate agent’s offer to market the defendant’s
house was accepted by the conduct of the defendant,
which consisted of her acquiescence in the process of
marketing the property. The defendant was liable to
pay commission in relation to the subsequent sale. In
Confetti Recordsv Warner Music UK Ltd (t/a East West
Records)(2003), Confetti Records sent to Warner Music
a copy of a track called ‘Burnin’ and an invoice for an
advance payment (the offer) which Warner accepted by
their conduct of including the track on a compilation
album. Confetti’s attempt to revoke the offer came too
late as Warner’s had already incurred the expense of
producing the album.
An offeror may state that the acceptance must be in
a particular form. It follows that the offeror’s wishes
should be respected. So if he asks for an acceptance in
writing, a verbal acceptance by telephone will not be
valid. Sometimes the offeror may say ‘reply by return
post’, when he really means ‘reply quickly’ and a tele-
phone call would be acceptable. Provided that the
chosen method of acceptance fulfils the intentions of the
offeror, it will be binding.213
was no contract between the uncle and nephew, owner-
ship of the horse had not passed to the uncle.
Comment. This case established the principle that the
offeree’s silence or failure to act cannot constitute a valid
acceptance. The rule has a particularly useful application
to the problem of ‘inertia selling’. This is where a trader
sends unsolicited goods to a person’s home, stipulat-
ing that if he does not receive a reply within a specified
time, he will assume that his offer to sell the goods has
been accepted and the indicated price is payable. The
Felthouserule makes it clear that a recipient of goods in
these circumstances is not obliged to pay, because his
silence or inaction cannot amount to an acceptance. Many
people, however, have paid up in ignorance of the law.Brogdenv Metropolitan Railway Co
(1877)
Brogden had supplied the railway company with coal for
many years without the benefit of a formal agreement.
Eventually the parties decided to put their relationship on
a firmer footing. A draft agreement was drawn up by the
company’s agent and sent to Brogden. Brogden filled
in some blanks, including the name of an arbitrator,
marked it as ‘approved’ and returned it to the company’s
agent who put it in his drawer. Coal was ordered and
supplied in accordance with the terms of the ‘agree-
ment’. However, a dispute arose between the parties
and Brogden refused to supply coal to the company,
denying the existence of a binding contract between
them. The House of Lords held that a contract had been
concluded. Brogden’s amendments to the draft agree-
ment amounted to an offer which was accepted by the
company either when the first order was placed under
the terms of the agreement or at the latest when the coal
was supplied. By their conduct the parties had indicated
their approval of the agreement.Yates Building Co Ltdv R J Pulleyn &
Sons (York) Ltd(1975)
The vendors of a piece of land stated that an option to
buy it should be exercised by ‘notice in writing...to be
sent registered or recorded delivery’. The acceptance
was sent by ordinary post. The Court of Appeal held that
the vendor’s intention was to ensure that they received
written notification of acceptance. The requirement to use
registered or recorded delivery was more in the nature of
a helpful suggestion than a condition of acceptance.Communication of acceptance
The general rule is that an acceptance must be com-
municated to the offeror, either by the offeree himself
or by someone authorised by the offeree. The contract
is formed at the time and place the acceptance is re-
ceived by the offeror. If the post, however, is the anticip-
ated method of communication between the parties,
then acceptance is effective immediately the letter of