A declaration of will, which is one of the constituent elements of a legal transaction, may be explicit or implicit (implied). While an express declaration of will is the declaration of one's will in a way that leaves no room for doubt, an implied declaration of will can be understood from the way a person acts, his/her general behavior, his/her doing or not doing something. In some cases, silence may also constitute an implied declaration of will and carry the meaning of acceptance or rejection.
Silence in English Law
In English Law, the situations where silence may constitute acceptance are exceptional and limited. Considering the English doctrine, it is possible to analyze the situations in which the silence of the contracting party may be effective as implied acceptance or rejection under three sub-headings.
1.1. It Is Understood and Agreed That Silence Will Mean Acceptance or Rejection
The contracting parties may constitute implied acceptance or rejection. In this context, the following examples can be given:
- if the offer has been solicited by the offeree ... especially if the offer is made on a form provided by the offeree and that form stipulates that silence may amount to acceptance
- if the offeree makes up his mind to accept an offer containing
- if the offeree makes up his mind to accept an offer containing a stipulation to the effect that his silence shall be operative
1.2. Duty To Speak
In cases where the invitation to enter into a contract is incomprehensible, an implied declaration of intent may be mentioned in cases where the party making the invitation communicates with the other party "in such a way as to show that he understands the invitation in a certain sense". According to Halsbury: "this communication will probably amount to a counter-offer; in which case, it may be that mere silence by the original offeror will constitute his acceptance"
The Court of Appeal in Ted Baker v AXA (2017) concluded that the duty to speak arises from the duty of good faith that exists in general commercial contracts. Having examined the authorities, the Court concluded that a reasonable person "would expect the other party...acting honestly and responsibly to take steps to make his position plain". Where it fails to do so, the Court noted, an estoppel by silence or acquiescence will arise to prevent the other party from profiting from its failure to speak.
1.3. Behavioral Silence
Behaviors such as one of the parties to the contract continuing to benefit from the subject matter of the contract without making a sound on the change in the terms of the contract; one of the parties to the dispute not exercising a procedural right granted to him are behaviors that are accepted as silence, and in these cases, silence means acceptance. For example, a tenant who is offered to renew his tenancy with a higher rent may be said to have accepted the offer by simply continuing to stay. An example would be a situation where the silence of the defendant in an arbitration case, in the face of the claimant's inaction for a significant period of time, leads to an agreement not to pursue the case.
Indeed, in The Kanchenjunga case (1990), it was held that the notification of readiness at a loading port was an express declaration by the owners that they accepted the charterers' order to load there.
2. In The Light of Supreme Court Decisions, Silence Does Not Constitute Acceptance Except in Exceptional Circumstances
Although various judgments and doctrine have exemplified a number of situations where silence may constitute implied acceptance under English law, there are a substantial number of Court of Appeal decisions to the contrary.
In 2018, the Court of Appeal confirmed in Abrahall and others v Nottingham City Council (2018) that the silence of a group of employees did not amount to their acceptance of a contractual change unilaterally imposed by their employer. The Judge referred to previous case law and quoted Elias J's observation that: "If employees continue to work without protest following implementation of a contractual variation, taking the good parts as well as the bad, it is usually easy to infer that they have accepted the package in its entirety. But where that is not the case it is more difficult to say that they are not simply putting up with a breach of contract because they are not prepared to take positive steps to remedy it, whether by taking industrial action or by bringing proceedings."
In R v East Sussex County Council and another (2015), it was held that "we would accept that mere silence or inaction on the part of the entity cannot amount to permitting. In the same way as silence and inactivity on the part of a private landowner cannot, without more, amount to consent so would the absence of any express or implied prohibition in the by laws, without more, not amount to an implied license." and it is stated that silence does not mean acceptance.
In addition to all these, Article 5 of Section 62 of the Marine Insurance Act, which was also the subject of the case Sveriges Angfartygs Assurans Forening (The Swedish Club) and others v Connect Shipping Inc and another (2019), states that "The acceptance of an abandonment may be either express or implied from the conduct of the insurer. The mere silence of the insurer after notice is not an acceptance." In light of this provision, it would be correct to say that silence cannot constitute implied acceptance.
Nevertheless, there are still contrary views in the doctrine. For example, Hirst, on The Kanchenjunga case mentioned above, stated that "It seems to me that, in a field of commerce where communications are swift and easy, with telexes sometimes owing back and forth several times a day, it is legitimate to treat silence on the owners' part after the expiry of a reasonable interval for consideration as connoting [the owners'] consent to the [charterers' illegitimate] order.", the court concluded.
In the context of English law, which is composed of parliamentary and court decisions, it is essential to examine the decisions from the past to the present in order to determine whether silence constitutes implied acceptance or rejection. Accordingly, although there may be exceptional cases where silence may constitute implied acceptance, it is clear that, as a rule, silence cannot constitute implied acceptance under English Law.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.