The General Rule About Acceptance By Silence Analysis

An analysis of the general rule about acceptance by silence ZHANG Li Introduction Professor McKendrick in his book writes ‘The general rule is that silence does not amount to an acceptance and this is a good one’. He then gives the reasoning by the sale of unsolicited goods. I agree with this rule and the reasoning given by Professor McKendrick. But I think the reasoning mentioned above is just one situation in the general rule that the offeror stipulates the acceptance by silence. There are also other situations. And also there are exceptions to this general rule. I want to illustrate that the general rule is a good one by analyzing these situations.
Rule in Felthouse
The situation in the reasoning given by professor McKendrick is the same as Felthouse case. The stipulation by the offeror is burdensome and has no legal basis. Because no one can impose legal obligation on others. Just as C.J Miller said, ‘he cannot force him to take a positive course of action under penalty of being contractually bound if he does not. Nor, by the same token, can he circumscribe the offeree’s freedom of action by providing that a similar significance will be attributed to an ordinary everyday act of an offeree’. This general rule had already been applied in Regulations and Act to regulate the inertia selling. From this aspect, the general rule is valid and a good
Brogden v Metropolitan Railway is a case which silence may constitute acceptance by conduct. The House of Lords held that ‘a contract had arisen by conduct……A mere mental assent to the agreement's terms stated in a proposed contract would not be binding, but acting upon those terms, amounted to sufficient to show……’ This case is very clear. Recent years, a number of cases have arisen, and the matter of acceptance by silence becomes more confused and controversial. Like Rust v Abbey Life Assurance Co Ltd and another . The main issue in this case was whether there had been a concluded contract between the plaintiff and the first defendant. Brandon L J in the judgment said: While in many cases silence or inactivity is not evidence of acceptance, having regard to the facts of this case and the history of the transaction between the parties as previously set out, it seems to me to be an inevitable inference from the conduct of the plaintiff in doing and saying nothing for seven months that she accepted the policy