Derek Moran
ACCEPTANCE OF AN OFFER in CONTRACTING
Acceptance of an Offer: may be made verbally or in writing, or it may be INFERRED from the CONDUCT of the PARTIES. However, certain rules must be complied with before acceptance of an offer is valid. First, acceptance MUST be communicated by the offeree to the offeror in the manner REQUESTED by or IMPLIED in the offer. Second, the acceptance must be clear, unequivocal, and unconditional.
Communication of the Acceptance: this is simple IF the offer STATES the method of acceptance. An offer might state the the offer may be accepted ONLY in writing or in person. In that case, the acceptance must be communicated in the STATED manner. HOWEVER, the offer may NOT contain such a precise stipulation. The courts look at a number of variables to determine what may constitute a valid form of communication of an acceptance. For example, they look at the form in which the offer was made, the usual and ordinary way of doing business in a particular industry, and the HISTORY of dealings between the parties to determine whether the method of communication was valid. While the form of acceptance must generally be POSITIVE in nature; EVEN SILENCE CAN BE a valid form of acceptance if the parties have AGREED in advance that SILENCE IS SUFFICIENT, or, where the parties have HABITUALLY used this method in previous transactions.
Example of SILENCE as Acceptance: You belong to a music club. Each month the club mails you a NOTICE ADVISING that it will send you that moth's selection of CD's UNLESS you mail back the NOTICE stating that you dont want them. The agreement you have with the club states, that failure to send back the NOTICE constitutes ACCEPTANCE of the Cd's. In this case then, SILENCE constitutes acceptance.
IF a person's conduct, though SILENT, leads the offeror to BELIEVE(?) that the offeree has accepted the offer, especially where the person receives some BENEFIT from the offeror, and knows that the offeror expects to be compensated for the services or goods supplied, the courts MAY find that a contract has been formed.
Example of SILENCE as Acceptance: Saint John Tug Boat Co. Ltd v. Irving Refinery: the plaintiff made its tugboat available for use by the defendant. The terms of the rental of the tug were never made agreed upon in writing, but a VERBAL agreement was made and extended TWICE. No formal authorization was made for a further EXTENSION, but the defendant CONTINUED to make use of the tug. The defendant then tried to DENY liability for ALL charges arising from the continued use of the tug. The court stated:
1. Liabilities are NOT TO BE FORCED UPON PEOPLE BEHIND THEIR BACKS, any more than you can CONFER A BENEFIT UPON A MAN AGAINST HIS WILL.
2. BUT...if a person KNOWS that the CONSIDERATION is being RENDERED for his BENEFIT, with an expectation that he will PAY FOR IT, then if he ACQUIESCES in its being done, taking the BENEFIT of it when done, he will be taken IMPLIEDLY to have REQUESTED ITS BEING DONE: and that will IMPORT, a PROMISE TO PAY for it.
In some cases, PERFORMANCE of the TERMS of the OFFER, may constitute acceptance. In those cases, acceptance is COMPLETE when the offeree performs all of the TERMS contained in the OFFER. In such a case, NOTIFYING the offeror of the ACCEPTANCE is UNNECESSARY.
Fundamentals of Contract Law - Emond Montgomery Publications by Jean Fitzgerald & Laurence Olivo
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