Lecture notes and O’Sullivan & Hilliard’s The Law of Contract (9th edn)
Acceptance / Communication of Acceptance:
-Definition of acceptance: ‘The unqualified expression of assent to the terms of the offer’.
E.g saying ‘yes but only if’ constitutes a counter offer and not acceptance.
-In determining if an acceptance has been made the objective intention principle is
applied, would a reasonable person in the offeror’s shoes believe the offeree was
accepting the offer
-You can only accept an offer made to you
-Hall v Maritek Bahamas Ltd(2015).
-Acceptance must be communicated to the offeror (person making the offer )
Entores ltd v miles far east corp (1955)
-If you are not aware of the offer you cannot accept it, in a unilateral contract with a reward if
you perform it but are unaware of the offer you can't expect the reward, and they wouldn't
expect a reward if unaware of the offer. (they never intended to form a contract as they didnt
know of it)
-An offeror can lay down how an offer is to be accepted Frank v Knight(1937), however another
method can be used if it equally well fulfills the offeror’s requirements and is reasonable such as
telling someone in person rather than over the phone Tinn v Hoffmann(1873)
-Only the offeree or a duly authorised agent can give acceptance (not a reliable third party as in
dodds) Powell v Lee (1908)
-Silence is not acceptance of an offer
-an offeror can not impose an offer by saying silence amounts to acceptance. Felthouse
v Bindley (1862). E.g if i don't hear from you by…. Then I assume you accept. Also if the
offeree holds the offeror to their stipulation of silence then that constitutes acceptance.
-Exceptions to the general rule:
-Acceptance by conduct
-an offeree can impose silence, re selectmove ltd (1995). If you say “if you don't
hear back from me then assume i accept the offer” then that can count.
-If a party initiates a proposal and receives that proposal and does not respond
for a lengthy period this can constitute acceptance Rust v Abbey Life Assurance
Co. Ltd[1979] - submitting an application for an insurance policy and sending the
money, then being sent the policy but not replying for seven months constituted
acceptance
-Consumers can treat goods supplied (unsolicited goods) as unconditional gifts and their
silence about them does not constitute consent, and are also protected against being
, give something they dont want and then expecting payment - Consumer Protection from
Unfair Trading Regulations 2008
-the offeree(person the offer is made to) must take all reasonable steps to bring the acceptance
to the attention of the offeror (person who made the offer)
-Electronic acceptance and postal rule are exceptions to the general rule in entores that
acceptance is only valid once it has come to the attention of the offeror
-Electronic acceptance:
-When the email was sent that constitutes accepting the offer (assuming its during office hours),
its when it should have been read, not when it actually was (see brimnes from last weeks
notes). This avoids people purposely avoiding reading the email to get out of it. How do you
decide when she should of read it?, e.g if she was in a meeting and couldnt/shouldnt of read it
then could be let off, but you could decide she should of read it. Not completely clear rule , more
of a case by case idea.
-Brinkibon Ltd v Stahag Stahl und Stahlwarenhandel GmbH (1983), no universal rule
can cover such cases, acceptance by email of an offer takes place when it was intended
by the parties to be accepted, by reference to sound business practice and having
regard to where the risks between parties may lie
-Basically you should read it fairly quickly (brimnes) but there is no solid universal rule
(brinkibon)
-If outside of office hours it should be read at the start of the next working day Mondial
Shipping and Chartering BV v Astarte Shipping Ltd[1995]
-What are normal office hours: (Not clear)
-The Brimnes[1975] between 17:30 and 18:00 was okay
-Thomas v BPE Solicitors (a firm)[2010] 18:00 was okay
-Probably down to individual context
-Answer phone: when it is reasonable for the offeror to check the answer phone (similar to
email)(authority see brinkibon judgement above)
-Fax: acceptance is valid (assuming sent in office hours) unless it has not got through, the
sender should then resend as this is a reasonable step (if they are aware), JSC Zestafoni G
Nikoladze Ferralloy Plant v Ronly Holdings Ltd(2004)
-If the fax/phone line goes dead during transmission and the offeror knew the message was
being sent but then didn't ask for it to be repeated (and the offeree thought it went through) then
the offeror is bound Entores v Miles Far East Corp
-Fault on the part of the offeror (accidently putting email into junk etc) is not a valid excuse
-In a nutshell: -the offeree(person the offer is made to) must take all reasonable steps to bring
the acceptance to the attention of the offeror (person who made the offer) and the offeror should
read it when they could reasonably have been expected to check the system (email, answer
phone etc)
Acceptance / Communication of Acceptance:
-Definition of acceptance: ‘The unqualified expression of assent to the terms of the offer’.
E.g saying ‘yes but only if’ constitutes a counter offer and not acceptance.
-In determining if an acceptance has been made the objective intention principle is
applied, would a reasonable person in the offeror’s shoes believe the offeree was
accepting the offer
-You can only accept an offer made to you
-Hall v Maritek Bahamas Ltd(2015).
-Acceptance must be communicated to the offeror (person making the offer )
Entores ltd v miles far east corp (1955)
-If you are not aware of the offer you cannot accept it, in a unilateral contract with a reward if
you perform it but are unaware of the offer you can't expect the reward, and they wouldn't
expect a reward if unaware of the offer. (they never intended to form a contract as they didnt
know of it)
-An offeror can lay down how an offer is to be accepted Frank v Knight(1937), however another
method can be used if it equally well fulfills the offeror’s requirements and is reasonable such as
telling someone in person rather than over the phone Tinn v Hoffmann(1873)
-Only the offeree or a duly authorised agent can give acceptance (not a reliable third party as in
dodds) Powell v Lee (1908)
-Silence is not acceptance of an offer
-an offeror can not impose an offer by saying silence amounts to acceptance. Felthouse
v Bindley (1862). E.g if i don't hear from you by…. Then I assume you accept. Also if the
offeree holds the offeror to their stipulation of silence then that constitutes acceptance.
-Exceptions to the general rule:
-Acceptance by conduct
-an offeree can impose silence, re selectmove ltd (1995). If you say “if you don't
hear back from me then assume i accept the offer” then that can count.
-If a party initiates a proposal and receives that proposal and does not respond
for a lengthy period this can constitute acceptance Rust v Abbey Life Assurance
Co. Ltd[1979] - submitting an application for an insurance policy and sending the
money, then being sent the policy but not replying for seven months constituted
acceptance
-Consumers can treat goods supplied (unsolicited goods) as unconditional gifts and their
silence about them does not constitute consent, and are also protected against being
, give something they dont want and then expecting payment - Consumer Protection from
Unfair Trading Regulations 2008
-the offeree(person the offer is made to) must take all reasonable steps to bring the acceptance
to the attention of the offeror (person who made the offer)
-Electronic acceptance and postal rule are exceptions to the general rule in entores that
acceptance is only valid once it has come to the attention of the offeror
-Electronic acceptance:
-When the email was sent that constitutes accepting the offer (assuming its during office hours),
its when it should have been read, not when it actually was (see brimnes from last weeks
notes). This avoids people purposely avoiding reading the email to get out of it. How do you
decide when she should of read it?, e.g if she was in a meeting and couldnt/shouldnt of read it
then could be let off, but you could decide she should of read it. Not completely clear rule , more
of a case by case idea.
-Brinkibon Ltd v Stahag Stahl und Stahlwarenhandel GmbH (1983), no universal rule
can cover such cases, acceptance by email of an offer takes place when it was intended
by the parties to be accepted, by reference to sound business practice and having
regard to where the risks between parties may lie
-Basically you should read it fairly quickly (brimnes) but there is no solid universal rule
(brinkibon)
-If outside of office hours it should be read at the start of the next working day Mondial
Shipping and Chartering BV v Astarte Shipping Ltd[1995]
-What are normal office hours: (Not clear)
-The Brimnes[1975] between 17:30 and 18:00 was okay
-Thomas v BPE Solicitors (a firm)[2010] 18:00 was okay
-Probably down to individual context
-Answer phone: when it is reasonable for the offeror to check the answer phone (similar to
email)(authority see brinkibon judgement above)
-Fax: acceptance is valid (assuming sent in office hours) unless it has not got through, the
sender should then resend as this is a reasonable step (if they are aware), JSC Zestafoni G
Nikoladze Ferralloy Plant v Ronly Holdings Ltd(2004)
-If the fax/phone line goes dead during transmission and the offeror knew the message was
being sent but then didn't ask for it to be repeated (and the offeree thought it went through) then
the offeror is bound Entores v Miles Far East Corp
-Fault on the part of the offeror (accidently putting email into junk etc) is not a valid excuse
-In a nutshell: -the offeree(person the offer is made to) must take all reasonable steps to bring
the acceptance to the attention of the offeror (person who made the offer) and the offeror should
read it when they could reasonably have been expected to check the system (email, answer
phone etc)
