[Abstract：]It was establishedin Felthouse v Bindley[1862]11C.B.（N.S.）869that the acceptance cannot be implied from the offerees mere silence and the offeror cannot impose a contractual obligation upon the offeree if the offeree does not reject the offer in the way and time that the offeror prescribes.But this does not mean that silence， in any cases， does not amount to an acceptance.

[Keywords]silence； offer；acceptance； the conclusion of contract

[摘 要]根據(jù)菲特蒙斯訴賓德利一案，不能從受要約人單純的沉默中推斷出承諾的意思，同樣，要約人不能因?yàn)槭芤s人未及時(shí)按照要約中規(guī)定的方式對(duì)該要約表示明確拒絕，就認(rèn)定其同意該要約，并使其受合同義務(wù)的約束。但這一原則的確立，并不意味著，在任何情況下，沉默都不能成為承諾。

[關(guān)鍵詞]沉默；要約；承諾；合同成立

一、The General Rule

“An acceptance is the expression， by words or conduct， of assent to the terms of the offer in the manner prescribed or indicated by the offeror.”We can conclude from this definition that， as an acceptance， it should be able to express the intent of the offeree and the manner of expression is appreciable to the offeror. Normally， silence does not have this function. When the offeree has a mental decision to accept an offer but fail to express to the offeror， there is no recognized acceptance.A consensus ad idem is the premise of a contract.Without such an expression， we could hardly prove the consensus ad idem. However， I thinkwhat really matters is the capacity to express instead of the result whether the offeror have actually noticed the expression.Because the offeror may sometimes ignore the existence of this expression， due to some objective factors or some faults on the part of the offeror.

This rule should be understood with another one： the acceptance should be communicated to the offeror.To determine whether there is an established contract， we should look at what has been communicated between offeror and offeree by words or conduct.Silence， obviously， could not be included in these words or conduct as the nature of silence determines it could hardly be communicated in an objective way and mental assent which has not been communicated is far from objective， which will cause great uncertainty and confusion. Only if the acceptance has been communicated to the offeror， the offeror is no longer fixed in the uncertain status. And this rule could also prevent thepossibility that the offeroris imposed on a contractual obligation even he is not willing to do so.

In conclusion， this rule that silence does not amount to an acceptance， is rationale and equitable， for the sake of both the offeror and the offeree.

二、 The meaning of ‘silence

On the other hand， the ‘silence here does not mean no oral or written words， nor the offeree keepsmere inaction towards the offer. Maybe we should comprehend“silence”here in a broader sense.According to my understanding， silence means there is no reply made by the offeree to the offer or the reply cannot come in to notice to the offeror. Such silence does not have the capacity to convey a message to the offeror：I agree with the terms in the offer and would like to form a contract with you.

Sometimes， the reply has been made， but it should still be classified as silence and does not constitute an acceptance. Here are some examples：

i）A and Bintent to make a contract standing apart across the river.A shouts an offer to B. Bs reply is drowned by an aircraft flying overhead， so is not heard by A. There isno contract at that moment as the acceptance is not notified to A. Theshout should not be regard as an acceptance， as it could not come in to the notification of the offeror.

ii）InPowell v. Lee[1908]99L.T.284，a reply was made， but not by the offeror. It was held there was no contract completed as there had been no authorised communication of intention to contract on the party of the body. The reply sent by third party instead of the offeree or his agent， is not an effective acceptance. So in this case， the offeree kept silence to the offer.

iii）In Felthouse v Bindley，the offeree mentally intended to accept the offer and the intention can be manifested by his direction to the auctioneer. The question is that he did not reply to the offerors letter. Based on this， the court held that there had been no bargain. In this case， the offeree， though did have some reaction to the offer， did not communicate this to the offeror， so looking from the standpoint of the offeror， there was nothing but mere silence.

Moreover， in some situation， acceptances can be inferred from the soundless conducts.In day-to-day contracts， such inference is even more frequent in pursuance of convenience and higher efficiency， or to some extent， to protect the party relying on the ‘contract.

We could not simply say conduct is or is nota kind of silence. I think the conduct can be divided into two categories， for that can attract the attention of the offeror，since it can notify the offeror like spoken or written words， itought to enjoy the same position as spoken and written words and should not be considered as silence. Even some of this conduct is not positive act， for example， “a tenant can accept an offer of a new tenancy by simply not vacating the premises”.So the point whether it is a positive act or not， cannot decide the validity of the acceptance.

三、 Exceptions

However， this is just a ‘general rule， which means it is not an absolute one. In some exceptional circumstances， the law may recognize silence and give it the capacity to amount to an acceptance.

?。㏒ince that this rule is designed to protect offerors more than offerees and offerors have right to prescribe the mode of acceptances， the offerors， undoubtedly， have freedom to expressly or impliedly indicate that mere silence is amount to an acceptance.In this situation， the nature and form of the particular offer should be taken into consideration carefully.

A unilateral contract is a typical model in which offerors impliedly indicate silence is sufficient to be an acceptance， as in this situation， what the offeror desires is the performance rather than a notification. In unilateral contracts， there may be some sort of communication like that the acceptance has been performed and I am entitled to claim the reward， but this does not amount to acceptance itself. It just notifies the existence of the acceptance.

ⅱ）There is a basis of a course of dealing between the parties before or a custom of the trade or business，based on which both the parties could reasonably believe that an legally binding contract has come into existence through mere silence.

ⅲ）The acceptance is sent by post. An acceptance by post takes effect as soon as the letter of acceptance is post instead of the arrival of the acceptance take place， by what time the offeror has not noticed the acceptance yet. Even the posted letter is delayed or lost， it is held that the contract has been established.

ⅳ）The offeree has derived some benefits from the offer already. For example， acceptance of the offer arose when the offeree began using the goods.

I think one similaritybetween these exceptions is that the willingness of offeror plays an essential part to determine the effect of the silence in these circumstances. Firstly， if the offeror has indicated that silence is applicable， it is tenable that silence is sufficient to be an acceptance. In addition， after a period of dealing or with the knowledge of business custom， the silence becomes more reliable and more predictable， the offerorwill tend to recognize the validity of silence to be an acceptance. Even in circumstance of making contact by post， once the offeror chooses the manner of post， he chooses to undertake the risk that some accidents may occur during the process of posting the reply of offeree.

四、 Conclusion

Although there are quite of exceptions to the general rule that silence does not amount to an acceptance， this rule， I think， is still a good one. The general rule has some weakness in practice， however， we could not assert all the problems we meet in the practice are derived from this rule， and that is why these exceptions have been made to polish this rule.

參考文獻(xiàn)：

[1] Ewan McKendrick， Contract Law： Text， Cases， and Materials， 10thedn，2013，p.36-37.

[2] J Beatson et al， Ansons Law of contract，29thedn， 2010，p.40；45.

[3] Robert Upex， Geoffery Bennett， Davies on Contract， 10thedn，2008，p.16；31.

[4] Lord Westbury L.C. in Chinnock v Marchioness of Ely[1865]4De G.J.&S.638at p.643.

[5] Powell v. Lee [1908]99L.T.284.

[6] Lord Blackburn J in Smith v Hughes[1871]LR6QB579.

[7] Denning L.G. in Entores Ltd v Miles Far East Corporation[1955]2 Q.B.327.

[8] Roberts v Hayward[1828]3C.&P.432.

[9] Paul Richards， Law of Contract， 9thedn， 2009， p.28.

[10] Chitty on contracts ， Volume Ⅰgeneral principles，13thed， p.181.

[11] Household Fire Insurance Co. v Grant[1879]，4 Ex.D.216.

[12] Weathreby v Banham[1832]5C.7，p.228.

[13] Mary Charman， Contract Law， 3rded， 2005，p.28.

作者簡介：檀文芳（1993-），女，安徽望江人，華東政法大學(xué)法律學(xué)院2015級(jí)研究生，研究方向：民商法。