LAWS6991 Chap.3 Acceptance, Communication and Inferred Agreement
Acceptance, Communication and Inferred Agreement
This chapter completes the agreement topic. Acceptance must come from the offeree, respond to the offer, mirror its terms and usually be communicated. R v Clarke shows that acting without reliance on the offer is not acceptance, Felthouse v Bindley that silence is not enough, and Empirnall that conduct can be.
The chapter covers the battle of the forms, the postal rule, instantaneous communication under Brinkibon, the Electronic Transactions Act 2000 (NSW), and Brambles v Bathurst City Council on inferring agreement without a clear offer and acceptance.
What this chapter covers
- 01
Who may accept
- 02
Acceptance in reliance on the offer
- 03
Final and unqualified acceptance
- 04
Silence and acceptance by conduct
- 05
Battle of the forms
- 06
Postal acceptance rule
- 07
Instantaneous and electronic communication
- 08
Agreement without offer and acceptance
Worked example · free
An email acceptance and a crossed revocation
- 1Email is not post, so the postal rule does not apply; following Brinkibon, an instantaneous or electronic acceptance takes effect on receipt.
- 1Under section 13A of the Electronic Transactions Act 2000 (NSW), the acceptance was received at 10.15am when it became capable of being retrieved at the designated address, whether or not it had been read.
- 1The 10.30am revocation came after acceptance had taken effect, so it was too late to withdraw the offer.
- 1A contract was formed at 10.15am for 500 umbrellas at $8 each, a total of 500 multiplied by $8, which is $4,000.
Key terms
- Acceptance
- Final and unqualified assent to the terms of an offer by the offeree, usually communicated to the offeror.
- Postal acceptance rule
- The rule that an acceptance sent by post takes effect when it is posted, unless the offeror requires receipt.
- Battle of the forms
- A dispute over which party's standard terms govern when each side's documents contain conflicting conditions.
- Designated address
- An electronic address nominated for receiving communications, at which a message is treated as received when retrievable.
- Mutual assent
- Agreement shown by the parties' words and conduct as a whole, which can found a contract without a clear offer.
Acceptance, Communication and Inferred Agreement FAQ
Can silence ever count as acceptance?
An offeror cannot impose a contract by saying silence will be taken as acceptance, as Felthouse v Bindley shows. But silence combined with conduct, such as taking the benefit of services knowing they must be paid for, can signal acceptance to a reasonable bystander, as in Empirnall.
What happens if I do what the offer asks without knowing about it?
R v Clarke suggests there is no acceptance, because the act must be done in reliance on the offer. Performing the conditions by coincidence, or purely for other reasons, does not create a contractual entitlement.
When does the postal rule apply?
When posting is a reasonable way to accept and the offeror has not demanded actual receipt. The acceptance then takes effect on posting, so the offeror bears the risk of a letter being lost or delayed.
Does the postal rule apply to email?
No. Instantaneous communication takes effect on receipt, as Brinkibon held for telex, and the Electronic Transactions Act 2000 (NSW) sets default rules treating an email as received when it can be retrieved at a designated address.
Whose terms win in a battle of the forms?
Often the last set of terms sent before performance. In Butler Machine Tool the buyer's order was a counter-offer, and the seller accepted it by returning the acknowledgment, so the seller's price variation clause was not part of the contract.
Can a contract exist without a clear offer and acceptance?
Yes. Brambles v Bathurst City Council asks whether agreement can be inferred, whether mutual assent was manifested, and whether a reasonable person in each party's position would think there was a concluded bargain.
Exam move
Practise this topic with timelines rather than definitions. For each problem, record who sent what, by which method, and when it arrived, then apply the receipt rule, the postal rule or the electronic transactions rule as appropriate. Learn the contrast cases in pairs: Felthouse against Empirnall on silence and conduct, and Butler against a straightforward mirror acceptance.
Keep Brambles ready for long commercial relationships where no single offer exists. Ask Sia to set mixed acceptance scenarios with different communication methods and check your timing analysis.
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