More recently, decisions in this area of law show that the courts do
acknowledge that the postal ‘rule’ is a rule of convenience, rather than
fixed law. In the case of Holwell v Hughes (1974) it was held that where an
offer requested ‘notice in writing’, the postal rule did not apply, because it
was obviously important to the offeror to receive communication of
acceptance in writing in front of him. In such cases a person who
specifically asks for receipt of the acceptance would want it on a piece of
paper, not (perhaps) in a distant post-box.
Another example of this is to be found in the recent case of Pretty
Pictures v Quixote Films (2003) where the parties envisaged a signed
written contract forming acceptance. The sending of an e-mail was not,
therefore, enough in this case to form a contract.
It should be noted, then, regarding acceptance, that:
- Acceptance generally should be communicated to be valid (this applies
to communications in person and telephone calls). - The postal rule is an exception to this general rule.
- An offeror is always free to say specifically that the postal rule will not
operate in a particular contract (or in some other words which lead to the
same conclusion, as in Holwell v Hughes).
Other methods of communicating acceptance
Ways of informing a person of acceptance now abound, but case law is
surprisingly thin in this area. Apart from the post and telephone,
acceptances by telegram and telex have been the subject of decided cases.
Telegrams and telex
Telegrams were the method of communication in Cowan v O’Connor
(1888). These are treated in the same way as letters. This is probably
because a telegram has several features in common with a letter.
It is a third party (the Post Office) who take the responsibility of
delivering them, not the sender (as with letters). They are faster than letters,
but not instantaneous, and there is no acknowledgement of receipt.
Telex enables a message to be dispatched from an office by a teleprinter,
operated like a typewriter, with special codes, using a modem and the
telephone system, and almost instantaneously received in another office,
even abroad. Because it is virtually instantaneous, it was held in the case of
Entores (see p. 23 above) that telex should be treated like a telephone call,
Offer and acceptance 29How will other methods of communication be viewed by the courts? Should they,
too, be subject to the postal rule, or does communication need to be received?