LEGAL PERSPECTIVE: Silence as acceptance for contract, By AbdelGadir Warsama Ghalib, Legal Counsel, Bahrain

Dr AbdelGadir Warsama Ghalib, Legal Counsel, Bahrain

A contract is the will of the contracting parties. Basically, there are three elements for the formation of a binding contract. That is, the offer, acceptance and consideration. The offer and acceptance can take different forms as express or implied or otherwise. However, an important question could arise, can silence be taken as acceptance of the offer.

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Since the basis of the contract law is the voluntary agreement of the parties, the law generally requires some affirmative indication of assent from the offeree before it binds them to the terms of an offer. This generally means that an off error is not allowed to word his offer so that the offeree must act to avoid being bound to a contract. As an example, an offer that said “if you do not object within 10 days, we have a contract” imposes no legal duty on the offeree to respond. It also means that mere silence on the part of the offeree is generally not acceptance.

On the other hand, always, bear in mind that the ultimate question of the Courts in acceptance case, “did the offeree objectively indicate an intent to be bound by the terms of the offer? Sometimes the circumstances of the case impose on the offeree a duty to reject an offer or be bound by it. In such case the silence of the offeree constitutes an acceptance and a contract is created. If the parties have dealt with each other before and silence signaled acceptance in their prior dealings, the offeree who remains silent in the face of an offer may be held to have accepted.

A similar situation could arise due to trade usage, where the parties are both members of a trade in which failure to reject promptly customarily indicates acceptance. An offeree silence can also operate as acceptance if he indicated that,” if you don’t hear from me in five days, I accept”. Or if he allows the off error to perform the offered services without any objection.

It’s a legal commitment, to give an acceptance to the offer. As valid contracts are legally enforceable. As a rule, silence will not be taken as acceptance. However, be careful, as in some instances, silence could be operative and taken as acceptance from your part. Don’t keep your mouth shut, if you don’t want to commit yourself.

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