Civil Engineering Reference
In-Depth Information
There is a general rule in Scots law that silence by the recipient of the offer does not
imply acceptance of the offer, subject to two exceptions:
•
unilateral or 'if' contracts where uncommunicated acts of the party accepting the
offer may be sufficient to conclude the contract (see
Carlill
v.
Carbolic Smokeball
Company
(1893)); and
•
the postal acceptance rule (see Section 3.2.3).
If an offeror stipulates that silence will amount to acceptance, that offeror will be per-
sonally barred from later arguing against the offeree that no contract exists as a result
of the absence of a communicated acceptance.
In
Wylie & Lochhead
v.
McElroy & Sons
(1873),itwasheldthatthecontentionbythe
pursuers that the offerees' silence inferred acceptance was a most unreasonable one.
Actionsonthepartoftheofereemaybesuicienttoinferthattheyhaveacceptedthe
offer. In
Gordon Adams & Partners
v.
Jessop
(1987), the defender instructed the pur-
suerstoplacehispropertyonalistofpropertiesforsale.hepursuers,aterinspection
of the premises, wrote to the defender stating that the property was placed with them
ona'soleagency'basis.hedefender'ssolicitorwrotetothepursuersstatingthatwhile
thepursuerswereinstructedtoplacethepropertyonthelist,theywerenotappointed
as sole agents. The pursuers responded that they would not accept property unless it
was on a sole agency basis. The defender did not respond to that but allowed the pur-
suers to continue to place the property on their list. It was held that a contract existed
between the parties. he defender, in the full knowledge that the pursuers were insist-
ing that they were sole agents, allowed the pursuers to place the property on their
list. In the light of the defender's actions the pursuers' belief that there was a contract
between the parties was a reasonable one, induced by the defender's behaviour.
Acceptance can be verbal, written or implied from the conduct of the parties. Above
all, the acceptance must meet the offer. An acceptance which does not accept all of the
parts to the offer or which tries to incorporate conditions or qualifications into the
offer is not an acceptance at all but a counter-offer, see
Wolf & Wolf
v
.ForfarPotato
Co
. (1984). In general, the effect of a counter-offer is to refuse the original offer, which
will then fall and can no longer be accepted. Where a counter-offer is accepted uncon-
ditionally by the original offerer, then the contract will be concluded.
Acceptance of an offer must be communicated to the offerer before the contract is
concluded. There are exceptions to this general rule, for example, where the contract
is concluded as a result of the actions of the parties and where acceptance is made by
post. The offer may stipulate the method of acceptance, for example, by post, email,
fax or telephone. Where the method of acceptance is stipulated, communication of
the acceptance must be made by that method or it will be invalid. Where no method
of acceptance is stipulated, the acceptance is valid provided it is made in a competent
manner. Particular rules apply regarding postal communications, see Section 3.2.3.
It is trite law, but worthy of reinforcing, that the sending of contract documents
by an employer to a contractor and subsequent signature by the contractor does not
