Clarifying the role of silence in contractual consent

By Anthony Goodnuff Appiah LARBI

It is usually said silence means consent in our everyday statements. This reminds me of my Senior High School (SHS) days. My Elective English Literature teacher, Mr. Afful, in one of his comments to make class interesting said, gone were the days when there were no mobile phones and when you met a lady and expressed love to her, if she responded by using her foot to create art or writing on the ground, verbal confirmation was unnecessary.

According to him, the lady’s silence, expressed through actions, indicated her acceptance of your romantic proposal. At this point, it was clear that the next step was to move forward and deepen the bond of affection between you and the lady. Every guy knows what to do next. Smile and let us proceed with the gravamen of this topic.

In the realm of Contract Law, the debate surrounding the role of silence revolves around the question of whether silence alone can be considered as constituting consent to a contractual agreement. On one side of the argument are those who assert that silence should be interpreted as consent in certain contexts, especially where there is a pre-existing relationship between the parties or a course of dealing that suggests acceptance through silence. This perspective often emphasizes the efficiency and practicality of recognizing silence as a form of agreement, particularly in situations where explicit consent may be impractical or unnecessary.

On the other side of the debate are those who contend that silence should not be presumed to indicate consent as it may lead to misunderstandings and disputes. This viewpoint emphasizes the importance of clear and unambiguous communication in contract formation, arguing that consent should be based on affirmative or explicit agreement to ensure mutual understanding and prevent coercion or exploitation.

The debate highlights the tension between flexibility and certainty in the Law of Contract as well as the need to balance principles of autonomy and fairness in determining the role of silence in contractual consent. Let us now delve deeper into this issue to gain a better understanding of its implications.

The conundrum of contract and agreement

A contract may be made orally or in writing or in a formal written document (Called a deed). Most people are likely to make at least one contract everyday of their lives. Goods are bought and sold at specified prices and payment terms are agreed upon; each time one spends money on anything a newspaper, a bus ticket, an airline ticket, a pair of shoes, a meal in a restaurant, laundry services, books, or signs a lease, one concludes a valid and legally binding contract. We enter into contracts on daily basis; sometimes we enter into contracts without knowing we have done so. Contract is universal in our everyday transactions.

The elements of a valid contracts are agreement (offer and acceptance), consideration, capacity and the intention to create legal relations. In Forson v. Koens and Another, Edusei J held that, “The general principle of the law of contract as regards its formation is the concurrence of three distinct elements-agreement, consideration and the intention to create legal relations. This is common law standpoint.”

So in determining whether a contract has been formed, what the law looks for is the outward manifestations of an agreement, not speculation. Agreement is not a mental state but an act, and as an act, it is a matter of inference from conduct.

The principle of law established in Fofie v. Zanyo is that before it could be said that there has been an acceptance of an offer by an offeree, there has to be (a) positive evidence by words, in writing or by conduct from which the court might infer acceptance; and (b) the acceptance must have been communicated to the offeror. The parties are not to be judge, not by what is in their minds, but by what they have said or written or done.

It is trite legal principle that a proposal (termed offer) and acceptance are mere agreement. These two requirements form the foremost elements of a valid contract. For an agreement to qualify as a contract, the law requires that certain ingredients must be present. What distinguishes a contract from a mere agreement is the fact that, if one of the parties fails to honour or discharge his promises, the other party may take legal action against the party in default. Larbi (2020) recognised that “in the mathematical expression, contract is a subset of Agreement”.

So in legal terminology, while a contract is indeed a fraction of an agreement, it is important to note that not all agreements necessarily qualify as contracts. Contracts entail specific legal elements such as offer, acceptance, consideration, and intention to create legal relations, distinguishing them from mere agreements which may lack the enforceability or formality required by law.

The principle of mutual assent

The fundamental requirement of mutual assent, also known as “consensus ad idem” is a cornerstone principle in contract formation in Law of Contract. This principle stipulates that, for a contract to be valid and enforceable, there must be mutual agreement or understanding between the parties involved. In essence, both parties must consent to the terms of the contract and agree to be bound by its provisions. Mutual assent typically involves two key components; and they are Offer and Acceptance.

Significantly, for mutual assent to be established, both offer and acceptance must be made with the intent to create a legally binding agreement. This means that the parties must have a genuine intention to enter into the contract, free from coercion, illegality, fraud, undue influence, misrepresentation or mistake.

Additionally, the terms of the offer and acceptance must align without material alterations or modifications. If the offeree attempts to change the terms of the offer in his or her attempt to accept the offer, this would generally be considered a counter-offer rather than an acceptance, thereby negating mutual assent unless the offeror agrees to the new terms. Mutual assent serves as the foundation of contract formation, ensuring that both parties have reached a ‘meeting of the minds’ regarding the essential terms of the agreement.

Without mutual assent, a contract cannot be said to exist, and thus, it would not be enforceable under contract law. Consent in contract law typically requires an affirmative consent or explicit agreement from the parties involved. This means that for a contract to be valid, there must be a clear expression of willingness and agreement to be bound by the terms of the contract. Affirmative consent according to Black’s Law Dictionary refers to “the principle that plain and clear consent must be obtained before certain acts or events, such as changes in policies that could impair an individual’s rights or interests.”

Explicit agreement entails a clear and unambiguous expression of assent to the terms of the contract, leaving no room for doubt or misunderstanding. The requirement for affirmative consent or explicit agreement underscores the importance of clear and voluntary consent in contract formation.

It ensures that contracts are entered into knowingly and willingly by all parties involved, thereby promoting fairness, certainty, and enforceability in contractual relationships. So in Felthouse v Bindley discussed infra it was held that there had not been an acceptance of the offer; silence did not amount to acceptance and an obligation cannot be imposed by another. Any acceptance of an offer must be communicated clearly.

The above notwithstanding, the Court would infer consent in appropriate cases where the parties conducted themselves in a consensual manner despite the fact that they do not explicitly so consent. In the case of Brogden v Metropolitan Railway, the companies had been dealing with each other on long-term and informal basis, and without any written contract. They agreed that they should write up a formal agreement. Acceptance was never communicated but the companies continued to do business with each other. A valid contract was found because acceptance was inferred from the continued performance of the contract without any objection as to its terms. Hence, the Court deduced acceptance from the conduct of the two companies.

Communication of acceptance

Acceptance must be communicated to the other party (except in unilateral contract). It is not enough that the offeree has decided to accept the offer. A tacit formation of intention is insufficient: the offeree must let the offeror know that he has decided to do so. It follows that the offeror may not take silence for acceptance without prior agreement of the offeree. The leading case on this principle is Felthouse v Bindley.

In this case, a nephew had been negotiating the sale of horse to his uncle, Felthouse, who wrote and offered to buy the horse, saying: “If I hear no more about him, I consider the horse mine at €30, 15s.” The nephew decided to sell the horse at that price and instructed the auctioneer, Bindley, who was about to sell the horse, not to do so, but the auctioneer sold the horse by mistake. The uncle then sued the auctioneer for selling his horse, claiming that the sale to him by his nephew was complete before the auctioneer sold the horse.

The court held that there was no completed contract between Felthouse and his nephew because the nephew had not communicated the acceptance to the uncle. The point of this rule is that it prevents the imposition of a contract on someone who simply fails to respond to an offer. Thus “inertia selling”, by which unordered goods are sent through the post with a letter demanding payment within a certain time, can never impose a valid contract on the recipient.

Exceptions and considerations

Silence may be interpreted as consent in certain circumstances, particularly when there is a pre-existing relationship between the parties or when customary practices or industry norms suggest that silence implies agreement. The rule that silence does not amount to acceptance does not mean that acceptance must always be in words. In unilateral contracts, acceptance is implied by conduct rather than by words and the need to tell the offeror what you are doing is waived. Thus, in Carlill v Carbolic Smoke Ball Co Ltd, Carlill accepted the offer by using the Smoke Ball as directed.

She did not have to write and tell the company that she was performing the actions that constituted acceptance of their offer, and their argument that there was no contract because she had not communicated her acceptance was rejected by the court. The way in which they had made their offer implied that the need for communication of acceptance was waived (set aside as unnecessary).

Acceptance may be through words, either spoken or written, especially in bilateral offers or by the performance of the act requested as in unilateral offer as was held in Carlill v Carbolic Smoke Ball cited supra. Acceptance in this case was complete without the need of the plaintiff to communicate the fact of acceptance to the offeror, as there is a complete contract in existence once the act of acceptance has been completely performed.

Similarly, if anyone offers an X amount to anyone who finds a lost item, everyone who reads the advertisement does not have to write to the advertiser to accept the offer. The advertiser can be said to have impliedly waived the need for such communication and anyone who finds and returns the said lost item is regarded as having accepted the offer, imposing a contractual obligation on the owner, whether or not acceptance has been communicated.

It is also important to note that the interpretation of silence as consent should be approached with caution, and its validity may vary depending on the specific circumstances and applicable legal standards. In Felthouse v Bindley discussed above, silence cannot amount to acceptance.

However, silence can qualify as acceptance if it is accompanied by conduct. This is a form of implied acceptance, which is gathered by examining the whole course of conduct of the parties. Note that the court again adopt an approach based on fairness, depending on the conduct of the parties.  It would be unfair to overlook the fact that a party was acting as though an agreement existed, and to then allow him to go back on it simply because a problem has arisen.

Also, in Sudbrook Trading Estate v Eggleton, a lease granted Eggleton (E) the option to purchase the property at a price that was to be determined by two surveyors – one of which would be appointed by the landlord and the other of which would be appointed by (E). Eggleton sought to exercise the purchase option, but the landlord declined to appoint a surveyor, claiming that the clause did not specify a price and was therefore too vague to constitute an offer. The court again adopted an objective approach towards the facts of the case, holding that the clause was not vague because it contained a process for determining the price.

Challenges with interpreting silence

Silence alone may not be sufficient to establish consent in Law of Contract due to several reasons, which highlight the complexities and potential pitfalls associated with relying on silence as a form of agreement. While silence may carry implications in certain contexts, it is generally insufficient to establish consent in Law of Contract due to its ambiguity, potential for misunderstanding, and inability to demonstrate genuine intent. Clear and affirmative communication is essential to ensure mutual understanding and the validity of contractual agreements. The issue whether or not there exists an agreement between parties, is determined objectively.

Notwithstanding the importance of the objective test in determining the existence of an agreement, it must be said also that it is clearly not the intention of the court to impose an agreement where none existed simply because some hypothetical reasonable man says that there is such an agreement. The Supreme Court speaking through Adinyira JSC (as she then was) in the case of In Re Mireku & Tettey (d’ced); Mireku & Others v Tettey & Others succinctly stated that “it is not the duty of the Courts to make a new contract for parties on terms they have not mutually agreed upon.”

Considering the dictum of Lord Denning MR in the case of Storer v Manchester City Council, the learned judge said “In contracts you do not look into the actual intent in a man’s mind. You look at what he said and did”. The actual intent of a party to an agreement in this matter been silence can never connote acceptance, there must be action towards the acceptance.

The principle stated In Re Mireku v Tetteh cited supra is subject to exceptions and this was stated by Atuguba JSC (as he then was) in S.S.B Bank Limited v. CBAM Inc. that “It has often been said that the courts will not make a contract for the parties or refuse to give effect to the terms of their contract, subject to a few exceptions, relating to illegality, fraud or gross unconscionability, etc.” [Emphasis added]

In the case of Day Morris Associates v Voyce, the plaintiff (DMA) approached the defendant (V), offering to sell her property in return for commission once it had been sold. To the knowledge of the defendant, the plaintiff listed the particulars of and marketed the property. The property was sold, but defendant refused to pay commission to the plaintiff, arguing that she had not communicated acceptance.

It was held that the defendant had acquiesced to the marketing of her property, and was thereby held to have accepted the plaintiff’s offer to market it in return for commission upon the sale of the property. The court stated that the test for determining whether an agreement has been formed is objective – a reasonable person observing the conduct of the parties would assume that defendant had accepted the plaintiff’s offer through conduct.

Decoding acceptance in the digital age

In this 21^st century, the intricacies of communication have changed dramatically, prompting questions about interpreting acceptance in digital interactions. With the rise of emojis as distinct forms of expression, parallels can be drawn to historical methods of understanding consent. Just as our forefathers discerned meaning from the silence of a shy woman, contemporary technology offers new avenues for inferring response.

Consider a scenario where a love proposal is conveyed digitally: if met with a heart or thumbs-up emoji, it may suggest acceptance. A Canadian court decided in the case of South West Terminal Ltd v Achter Land that a thumbs-up emoji sent as a text message can be interpreted as acceptance to an offer, which becomes an agreement to contract.

However, the absence of a response (silence) to a love proposal doesn’t necessarily signify bounce (rejection); it could also denote contemplation. It is important to consider that proposal and acceptance are merely agreement until they meet all the elements of a contract, at which point breaches can be legally enforced.

Obu & Sackey (2023) speculated about the role of emojis in legal matters, suggesting that it is imminent that people will begin to institute actions of breach of promise to marry, breach of contract etcetera as a result of the wrong use of social media emojis. Please take a cue from this proverbial phrase “Just because the lizard nods his head, doesn’t mean he’s in agreement.” This phrase metaphorically suggests that mere outward signs of agreement, do not necessarily reflect genuine understanding or alignment of viewpoints. It is reasonable to look beyond surface gestures and assess true consensus or understanding in communication.

Unless the law prescribes a certain formality for the intended contract, offer and acceptance may be made orally, in writing, or by action or inaction that under circumstances is clearly indicative of consent. At common law, agreements between parties that satisfy the requirements of a contract formation generate contractual rights and obligations, but only presumptively so.

The consent of parties to a contract as well as their rights and obligations may be defeated or negated, wholly or partially, by recognised factors which are generally called vitiating factors. In respect to misrepresentation as part of vitiating factors, mere silence does not constitute misrepresentation unless (a) in contracts of utmost good faith (uberrimae fidei), (b) where there has been a change of circumstances; (c) in cases of partial disclosure where a half-truth amounts to a misrepresentation, and (d) where there is a fiduciary relationship.

Conclusion

From the above legal analysis, silence may not always constitute consent or acceptance. Parties should actively communicate their intentions, expectations, and concerns to ensure mutual understanding on the formation of valid and enforceable contracts. Also, parties should always strive to ensure clarity and mutual understanding in their agreements, and they should not rely solely on silence as a substitute for explicit consent.

The offeree must indicate his assent either in words, in writing or by conduct because as a general rule a mere intention to accept does not constitute an acceptance. This rule is apposite as it prevents aggressive business people from forcing others into contractual relation against their will. In this digital age, interpreting acceptance through emojis poses new challenges and opportunities, especially in romantic proposals. While emojis provide different expressions, they also risk misinterpretations. As communication evolves, it is essential to circumnavigate these complications with clarity and understanding.

>>>the writer holds BSc, LLB, MPhil and currently a Doctor of Philosophy (PhD) Research Student in Development Studies at Africa Research University – Zambia. He works at the Judicial Service of Ghana as a Court Clerk. He is known to be an avid reader, writer and Legal Researcher. He was awarded National Best Student Author in two consecutive years i.e. 2020 and 2021 under the auspices of National Students’ Awards (NSA). He can be reached via Email [email protected] or Tel. 233549657873

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