JUR5260 Spring 2009 – Acceptance and Intention to Create
Legal Relations
Acceptance
1. What is acceptance?
(i) the final and unconditional expression of consent to offer;
(ii) made in response to offer;
(iii)exactly matching terms of offer;
(iv) communicated to offeror.
Ad. (i): acceptance may be oral, written or by conduct on part of offeree. Need to be able
to infer intention by offeree to be bound by terms of offer.
Cannot stipulate silence as acceptance: see Felthouse v. Bindley (1862). Cf. Re
Selectmove Ltd. (1995).
Ad. (ii): person must know of offer in order to be able to accept it, but motive in
accepting is irrelevant.
Ad. (iii): reply to offer is only effective as acceptance if it accepts all terms of offer
without qualifications, reservations or additions: see, e.g., Nicolene v. Simmonds (1953).
Thus, conditional acceptance ≠ acceptance: see, e.g., Winn v. Bull (1877).
NB: The “battle of the forms” – Butler Machine Tool Co. Ltd. v. Ex-Cell-O-
Corp. Ltd. (1979).
Ad. (iv): acceptance must be communicated and is effective when and where received by
offeror. See, e.g., Entores v. Miles Far East Corp. (1955).
Onus on offeree to get message through to offeror, and offeree must believe, as
reasonable person, that acceptance has been received. Thus, reasonable
expectations of offeree = point of departure for resolving issue of when and
whether communication of acceptance has occurred. See espec. Brinkibon v.
Stahag Stahl (1982). (Poole: “a general principle appears to be identifiable,
namely that if the offeree has done all that he might reasonably be expected to do
to get his message through, that acceptance should take effect when the offeree
might reasonably expect it to be communicated to the offeror” (9th ed., p. 73))
Specifying method of acceptance?
If offeror stipulates that offer must be accepted in a certain way then only
acceptance by that method – or an equally effective one – will be binding. To
be equally effective, the alternative acceptance method must be at least as fast
and as advantageous for the offeror as the method stipulated by the offeror:
see Tinn v. Hoffman (1873); cf. Quenerduaine v. Cole (1883).
