Silence

Question 1

Is silence ok during a unilateral or bilateral contract?

Answer 1

• Silence during acceptance is ok during a unilateral contract when you have impliedly waived the requirement of communication in order to accept an act. There is no promise here to communicate.
• You need a positive act, not a negative act. Not doing something cannot be acceptance. An act that when you don’t do something does not work when it comes to acceptance.

Question 2

Acquiescence?

Answer 2

• Silence can constitute acceptance when conduct dictates that you are accepting some benefit from an offer and there is no effort made to reject the offer, when it is clear that the other party would want to be paid (acquiescence).
  • Acquiescence/silence will constitute acceptance when it is genuinely deceptive in the sense that an ORP would say that receiving such services without substantial rejection is intent to accept.

Question 3

Carlill v. Carbolic Smoke Ball Co. [1893] 1 Q.B. 256 (C.A.)
(Silence In Acceptance)

Issues:
- Whether or not notification of acceptance through fulfillment of the offer’s conditions is required to be given to the defendant making the offer for a contract to stand.

Answer 3

Rules:
- Acceptance does not need to be communicated by the offeree when there is no requirement listed by the offeror.
- Performance of contract by the offeree is enough to constitute acceptance of the offer (unilateral contract).

Question 4

Felthouse v. Bindley (1862), 11 C.B. (N.S.) 869, 142 E.R. 1037 (Ex. Ch.)
(Silence is Not Acceptance)

Issues:
- Does silence of the nephew constitute as acceptance?

Answer 4

Rules:
- Silence is ambiguous and does not mean acceptance of the uncle’s January 2nd letter.
- Generally, silence does not constitute acceptance, requires a positive act (in unilateral case) or a positive promise (in bilateral case) for the contract to be effective.
- Silence alone cannot accept an offer. An act making acceptance in a unilateral contract must be a positive act, not just “if I hear nothing I will consider it sold”.
- In a unilateral contract an act must be performed for acceptance to occur.
- In a bilateral contract promises must be exchanged for acceptance to occur.

Conclusion:
- The silence of nephew did not constitute acceptance.

Question 5

Dawson v. Helicopter Exploration Co.

Answer 5

If it was a unilateral contract – no acceptance therefore no contract but since it was identified as a bilateral contract – acceptance was when he said he’d take him up in the helicopter – despite he didn’t take him up, there was a binding contract when he took stake in the land

Question 6

Saint John Tug Boat Co. v. Irving Refinery Ltd. [1964] S.C.R. 614, 49 M.P.R. 284, 46 D.L.R (2d) 1
(Deceptive Acquiescence)

Issues:
- Did R’s conduct constitute a continuing acceptance of A’s offers in paying for the “stand-by services”?
- Was there an agreement implied from R’s acquiescence in the tug’s services being applied for its benefit?
- Does silence always not constitute acceptance?
- Was there a contract after the end date in July?

Answer 6

Rules:
- Silence can constitute acceptance when conduct dictates that you are accepting some benefit from an offer and there is no effort made to reject the offer, when it is clear that the other party would want to be paid (acquiescence) according to an ORP.
- Acquiescence/silence will constitute acceptance when it is genuinely deceptive in the sense that an ORP would say that receiving such services without substantial rejection is intent to accept.
- Would a ORP have accepted?: If A allowed work to be done by B then no reasonable man would suppose that B meant to do the work for nothing. A will then be considered having accepted and liable to pay R for services.
- When there is deception in the fact that the offeror could reasonably say that the offeree’s conduct constitutes acceptance through acquiescence, the court will see this as acceptance.

Conclusion:
- Silence can be acceptance if there is deceptive acquiescence.

Question 7

O’Neill v Kings County Construction
(ORP BELIEVE AN INTENT TO ACCEPT (Deceptive Acquiescence))

Issues:
- Did O accept a contract to repay KCC via revenue from blueberry production?
- Does silence from O’Neill constitute an acceptance?

Answer 7

Rules:
- Apply objective test of observation from Tugboat.
- Acquiescence/silence will constitute acceptance when it is genuinely deceptive in the sense that an ORP would say that receiving such services without substantial rejection is intent to accept.
- Would a ORP have accepted?: If A allowed work to be done by B then no reasonable man would suppose that B meant to do the work for nothing. A will then be considered having accepted and liable to pay R for services.
- Application of Saint John’s Tugboat, were the services provided to the knowledge of the recipient, the recipient has an opportunity to reject, confirms relationship by subsequent payments, but they simply acquiesce in the provision of these services, that deceptive acquiescence will lead the offeror to believe that they accepted the offer.

Conclusion:
- KCC entitled to recover balance.
- Silence from O’Neill constituted an acceptance and formed an implied contract.