5 Critical Insights: Silence as Acceptance in Contract Law – Can the Law Infer Consent from Silence?

Introduction

In the realm of contract law, one of the most debated and often misunderstood topics is whether silence can be presumed as acceptance of an offer. Generally, for a contract to be formed, there must be a clear offer and acceptance, supported by consideration. However, the issue of whether silence or inaction can be interpreted as acceptance raises significant legal questions. Does the law assume that silence implies consent, or is explicit acceptance required? This article delves into the legal principles, judicial authorities, and Supreme Court decisions in Nigeria to clarify whether silence can be construed as acceptance.

Legal Framework for Contract Formation

The general rule for the formation of a contract requires the following elements:

1. Offer: A clear and definite proposal made by one party (the offeror) to another (the offeree).
2. Acceptance: An unequivocal assent to the terms of the offer by the offeree.
3. Consideration: Something of value exchanged between the parties.
4. Intention to Create Legal Relations: Both parties must intend for the agreement to have legal consequences.

Acceptance, in most cases, must be communicated. The offeree’s assent must be clear and unmistakable, leaving no ambiguity. However, the question arises when the offeree remains silent: Can silence be deemed as acceptance? Let us explore this further.

Silence as Acceptance: The General Rule

Under common law, the general principle is that silence does not amount to acceptance. This rule is rooted in the idea that acceptance must be clearly communicated. The offeree must explicitly or implicitly manifest an intention to be bound by the terms of the offer. This principle was highlighted in the classic English case of Felthouse v. Bindley (1862), where the court held that silence cannot constitute acceptance. The case established that an offeror cannot unilaterally impose acceptance by stating, “If I hear no more from you, I will assume you accept my offer.”

In Nigeria, the general principle follows this common law tradition. However, there are exceptions and circumstances where silence, accompanied by certain conduct, may be interpreted as acceptance.

Exceptions to the Rule

While silence is generally not considered acceptance, there are notable exceptions where the law may infer acceptance based on the conduct of the parties or the specific circumstances of the case:

1. Previous Course of Dealing: If the parties have an established pattern of conduct where silence or inaction was previously interpreted as acceptance, the court may infer acceptance based on this prior conduct.
2. Acceptance by Conduct: If the offeree, despite remaining silent, begins to perform the obligations outlined in the offer, this may be seen as acceptance by conduct. The Nigerian courts have upheld that acceptance can be inferred from the conduct of the offeree when their actions demonstrate an unequivocal intention to accept the offer.
3. Where the Offeror Waives Communication: In some cases, the offeror may explicitly or implicitly indicate that acceptance need not be communicated. If the offeree then acts in reliance on the offer, the court_ may deem that silence, coupled with the offeree’s actions, constitutes acceptance.

Judicial Authorities and Case Law in Nigeria

Several cases in Nigeria have addressed the issue of whether silence can amount to acceptance, providing valuable insights into the legal reasoning of the courts.

1. Niger Progress Ltd. v. North East Line Corporation (1989) 3 NWLR (Pt. 107) 68 SC:  In this case, the
   Supreme Court of Nigeria held that acceptance can be inferred from the conduct of the parties. The court emphasized that where an offeree acts on the basis of the offer and both parties conduct themselves as if a contract has been formed, the court may infer acceptance despite the absence of an explicit statement of acceptance.
    
2.   Koolmate (Nig.) Ltd. v. Ebunoluwa Ventures Ltd. (2001) 8 NWLR (Pt. 716) 536
   •  The Court of Appeal in this case addressed the 
   ue of silence as acceptance. It was held that mere silence does not constitute acceptance unless accompanied by conduct that clearly indicates acceptance. The court stated that an offer cannot be imposed on the offeree merely by silence unless the circumstances or prior dealings between the parties suggest otherwise
3. Union Bank of Nigeria Plc v. Ozigi (1994) 3 NWLR (Pt. 333) 385 SC
   • This case provides a significant ruling on implied consent and acceptance. The Supreme Court held that where the conduct of the parties suggests an understanding and mutual assent, the court may infer acceptance from such conduct. The court noted that the intention of the parties is paramount, and where it is evident that the offeree has acted in reliance on the offer, silence may be interpreted as acceptance.
4. Odutola v. Papersack (Nig.) Ltd. (2006) 18 NWLR (Pt. 1012) 470 SC
   • In this case, the Supreme Court of Nigeria reiterated that silence, without more, does not constitute acceptance. However, the court also held that if there is evidence of conduct or other factors indicating that the offeree accepted the terms of the offer, the court may infer acceptance.

Legal Analysis: When Can Silence Be Inferred as Acceptance?

To determine whether silence can be inferred as acceptance, Nigerian courts consider several factors:

–— The Nature of the Offer: If the offeror explicitly states that silence will be taken as acceptance and the offeree continues to remain silent, courts may examine whether this silence was accompanied by conduct that implies consent.

— Conduct of the Parties: Courts often look at the actions of the offeree. If the offeree begins performing the obligations of the contract or takes actions consistent with acceptance, the court may infer that silence, combined with conduct, constitutes acceptance.

—-Course of Dealing: If the parties have previously engaged in transactions where silence was treated as acceptance, this history may inform the court’s decision.

— Reasonable Expectation: The court may consider what a reasonable person would have understood in the circumstances. If a reasonable person in the offeree’s position would have communicated non-acceptance but failed to do so, the court may be more inclined to infer acceptance from silence.

Conclusion

In conclusion, while the general rule is that silence does not amount to acceptance, exceptions exist where conduct, previous dealings, or specific circumstances allow the law to infer acceptance. The Nigerian courts have provided guidance through case law, demonstrating a willingness to look beyond mere silence and consider the totality of the parties’ actions and intentions. As a best practice, it is advisable for parties to communicate acceptance explicitly to avoid any ambiguity or legal disputes.

In legal practice, lawyers advising clients on contractual matters should be cautious about assuming acceptance from silence. The safest approach remains clear and unambiguous communication of acceptance or rejection to avoid misunderstandings and potential litigation. Where there is any doubt, legal counsel should be sought to ensure that the parties’ intentions are properly documented and enforceable.

The principle remains: Silence may speak, but in the eyes of the law, it does not often speak acceptance unless accompanied by conduct that leaves no room for doubt.

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