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French and british laws, they differ in basic analysis of a contract and exceptions to the general principle. French law traditionall wider range of exceptions regarding an acceptance than do law. By contrast, English law has recently developed sophisti ments in respect of certain exceptional situations where silen not only an acceptance but also an offer, to which French la alien. THERE is a common saying in French,' (qui ne dit mot consent) with its root in Latin, (qui tacet consentire vindetur) to the effect that silence signifies consent. Legally, such a po bears little weight and the primary principle is the reserve. FRENCH: "At law, the silence of a person to whom an obligation is imputed is not, in default of other circumstances, a proof against him for the alleged obligation."4 Certain doctrinal views explain the principle in terms of the requirement for a contractual expression of intention to be unequivocal." A few years before the French decision a similar principle was adopted for English law in the case of Felthouse v. Bindley6 and there- after followed.7 It has recently been reaffirmed8 that it is "axiomatic that acceptance of an offer cannot be inferred from silence and inaction" An explanation given is that "silence and inaction are of their nature equivocal, for the simple reason that there can be more than one reason why the person concerned has been silent and inactive". ENGLISH: the primary principle is that the offeree's "silence and inaction cannot be construed as an assent to the offer".10 Furthermore, certain statutory safeguards have been enacted under French11 and Englishl2 law to protect silent consumers. The Vienna Convention on Contracts for the International Sale of Goods 198013 likewise provides, in Article 18(1), that: "Silence or inac tivity does not in itself amount to acceptance."14 Thus both legal systems here under review hold silence to be in prin ciple ineffective and commonly attribute its inefficacy to the inheren ambivalence of its significance. Yet both systems make some exception to this general principle. MOST, but not all, of the exceptions made under French and to the general principle of inefficacy of silence relate to the sil acceptor/offeree rather than that of the offeror. A - Categories of Instances under French Law: In French law the validity of silence has been recognised as a question of fact16 in certain categories of cases which may be summarised as follows.
- Existence of prior relations: One category consists of cases where there has been a prior agree- ment (accord antirieur) between the parties. When one person writes to another confirming a previous oral agreement, failure to protest is evi- dence of the formation of the agreement.17 The same is said18 to apply where the efficacy of silence to vary a concluded contract is "formally" provided therein. Again, the parties may agree that their contract, e.g. of insurance19 or tenancy,20 will be renewed21 at the expiration of the original term if neither of them objects.
The act of a tenant in remaining in possession of property is con- sidered in French law to be a "tacit"23 or "indirect"24 manifestation of an intention to renew the contract, while the inaction or silence of the owner is sometimes regarded,25 in the light of the attendant circum- stances, as acquiescence amounting to acceptance. Care is sometimes taken by French commentators to warn against the confusion between the nature of a tacit expression and silence. "A tacit will", says Carbonnier,26 "materialises in an attitude, while silence has no exteriorisation." In his view, the main difference lies between a "tacit will" and what he calls "silence pure and simple," which has no outward manifestation and therefore is ineffective, while a "circumstan- tial silence" may amount to a tacit acceptance.27 A later commentator holds silence in general to constitute a "passive behaviour. The agreement of the parties may be inferred from their prior course of dealings (relations d'affaires anterieures). If, for example, a merchant in business with another sends him a consignment of goods of the same kind as they had normally traded in, the silence of the consignee would amount to acceptance.29 It is interesting to note that certain views link the efficacy of silence in a number of such cases to the tortious concept of "abuse of right" or to what amounts to "reasonable reliance”.
- In absence of prior relations In another, and more significant, category, where an antecedent agreement has been lacking, silence will be effective in two series of cases. (a) Warranted by commercial custom. When the custom of trade rec- ognises the efficacy of silence,31 e.g. if in stock exchange operations a professional dealer, having received a notice purporting to confirm a deal, does not expeditiously answer and object,32 or if the seller in a commercial transaction inserts33 in the invoice given at the time of delivery of the goods that payment should be made within a certain period, or stipulates that in the event of a dispute the court of his domi- cile should have jurisdiction,34 then the buyer's silence would amount to acceptance. (b) To offeree's exclusive advantage (offre in favorem). When the offer is exclusively to the advantage of the offeree, he is generally held to have no reason to reject it. The rule, its root in a Latin maxim35 and adopted in certain modern codes,36 was originally suggested by earlier commentators of the FCC.37 It first received judicial recognition in a decision of the Cour de Cassation in 1938,38 has later been applied to employment contracts39 and further extended through a controversial arrit de principe40 to a case of social assistance where an "agreement" could not but fictitiously be assumed.41 Yet, the rule being no more than a presumption, if it is established that the offeree intended to reject the favourable offer, the contract would not be deemed concluded.
- Note on international sale of goods The Vienna Convention on Contracts for the International Sale of Goods 1980, now also forming part of French law,43 while rejecting silence or in- activity as "in itself' constituting an acceptance,44 leaves room, through Article 19, for efficacy of silence due to usage or established practice. B. Instances under English Law Categorised Instances under English law where silence may be held effective as acceptance are confined to "most exceptional circumstances"46 and there are only a few cases that recognise silence as acceptance. In the broader context of common law, by taking some American jurisdictions into
in substance. In fact, a number of authors do refer to the tacit expression of will but their treatment of the offer is, in the final analysis, confined to cases where a patently positive attitude, as contrasted with passive behaviour, is involved. B. English Law: Exceptional Recognition in Recent Developments The idea that an offer may be made through silence appears novel under English law,70 though it has an arguable parentage under English law71 and some doubtful precursors under American law. Certain cases decided in the 1980s under English law have given rise to the possibility of silence being considered an effective offer. They concern arbitrations abandoned through the parties', particularly the claimant's, inaction over an inordinate length of time. In the absence of a statutory power for arbitrators to set such references aside, the courts have been called upon to determine the issue until, finally, The Courts and Legal Services Act 1990, the relevant provisions of which are expected to come into force in December 1991 or January 1992, has resolved the problem.73 Various judicial solutions have in the process been considered74 to cure the commercial ill of such "stale references", of which we shall broadly outline consensual abandonment through an implied agreement which involves not only an acceptance by silence but also an offer inferred from silence. The series of such cases started in 1979/1981 with the well-known case of Bremer Vulkan, where the House of Lords considered various solu- tions but not the abandonment of reference by mutual consent.75 No solution giving effect to abandonment, however,'was held applicable to the case. The gist of analysis in both cases was that substantial and inexcusable procrastination (the inactivity or "silence") by the claimant in pursuing the reference after it had been instituted would amount to an implied offer to abandon it; the inactivity or "silence" of the respondent over the same period would constitute an implied acceptance of that offer and, as a result, an agreement would be inferred generating a fresh implied contractual obligation not to proceed further with the reference. In 1985, however, the Court of Appeal reached a different conclusion in The Leonidas D, which has in effect produced a conflicting line of approach. It was held in this case that, as a matter of principle, silence can have no effect save that, in most exceptional circumstances, it may constitute acceptance.80 The decision has been criticised on several grounds,81 has significantly affected the innovatory approach introduced by The Splendid Sun and has caused a disarray of decisions in sub- sequent cases. Decisions in other cases since 1985 (the most recent decided in March 1990) have been divided and are in certain respects irreconcilable. Some have followed the line of reasoning adopted in The Leonidas D by rejecting in principle the formation sub silentio of an agreement to aban- don the reference.84 Others have reverted to the innovatory line adopted in The Splendid Sun as upheld in principle in The Hannah Blu- menthal for the efficacy of silence to constitute an implied offer and acceptance and thereby an agreement for the abandonment of the refer- ence.85. The idea that an offer may in certain circumstances be inferred from silence has found its way into the English law of contract.
- Silence as an acceptance and as an offer
How far is it correct to say, as it is commonly held under French law and, until a decade ago, used to be considered under English law, that silence can express an acceptance but not an offer? It is, first of all, a recognised principle, to the point of appearing to be a truism, that mere silence divorced from any context cannot produce any legal effect. Yet this obvious fact is often ignored or overlooked in legal discussions concerning exceptions to the general rule. The ambiguity or equivocal character ascribed in principle to silence under both legal systems"' is more a dictate of reason and common sense than a technical rule of law. Mere silence cannot be taken as an expression, be it for acceptance or offer or any other "juridical act" (acte juridique).88 When, by contrast, its efficacy depends on the con text, we believe it makes no difference whether it may stand for offer or acceptance, depending on circumstances to be taken into account. In the example provided by Article 1738 of the FCC89 the difference between the tenant's and the landlord's expressions of intention (follow ing the broad outline of the analysis given therefor) is that the forme retains possession of the premises, and consequently may be said to assume an attitude which "exteriorises" his intention, while the latter demonstrates a tacit or indirect assent or mere acquiescence. The circumstances of their existing relationship are as effective in giving a contrac- tual significance to the acquiescence, or tacit or indirect manifestation, of the landlord as they are in making the silent attitude, or tacit or indir- ect manifestation, of the tenant expressive. Thus, it may be said, if silence can express, depending on circum- stances, an intention to accept, it can equally well express an intention to offer, with this observation that usually the situations which provide a background to an offer are less frequent, and of a different combi- nation, than those which surround and constitute an acceptance. Recent developments under English law presented above91 corrobor- ate this view and provide, irrespective of conflicting decisions, a percep- tive insight into factual permutations where an offer may be inferred from "silence". These considerations, however, apply where the agreement in the aforementioned instances is to be analysed in terms of offer and acceptance as traditionally conceived in chronologically sequential order which, under both French92 and English93 law, may in fact prove artificial in certain circumstances.
- Silence or conduct? The reasoning may be pushed one step further. Is the so-calle "silence", in those cases where it is held effective, a mere silence or is it not tantamount to conduct? The differentiation French law makes between a "tacit" or "indirect" expression and a "circumstantial silence",95 as well as the generally held view that "silence" is not operative by way of offer,96 may originate in the misapprehension that omission does not constitute conduct. Con- duct, in its broadest sense, may include both commission and omission. In the same example of tenant and landlord under French law,97 the attitude of both parties-the tenant's retention of possession or, rather, his failure to vacate, and the landlord's acquiescence or, rather, his abstention from requesting the tenant to leave-equally amount to con- duct from which a contractual intention is to be inferred. The same kind of interpretation, in considering the inaction of the tenant as being con- duct rather than silence, is held to constitute the "better view" in a simi- lar case cited under English law.98 In such situations the so-called "silence" changes its character and
- Extension of analysis to cases of waiver or lapse the same kind of analysis may, mutatis mutandis, be applied to a dif- ferent set of situations where silence is held to constitute the waiver of a vested contractual right (or power), such as the right, in French113 law, to rescind, upon the satisfaction of requisite conditions, a contract of sale for lIsion, i.e. the disparity between the actual price and the market value of the thing sold recognised by the law as giving rise to a right of rescission.114 The subject falls beyond the scope of the present dis- cussion except in respect of a rule which provides that the right of rescission must be exercised within two years from the date of the sale.115 Now, if the suffering party remains silent, with actual knowledge that his silence would deprive him of the right of rescission, he is in effect waiving the right through his inaction. But if his inaction is due to his ignorance of this requirement, it is no longer accurate to say that he has intentionally waived the right. His right lapses by operation of the law on presumed, but unreal, intention, if intention is taken to play any part at all. Under English law, generally the equitable maxim that "delay defeats equity" and "equity aids the vigilant and not the indolent", which are the foundation of the equitable defence of laches,117 provide other instances where the law, lato sensu, holds silence effective and withholds its assistance from a person who sleeps, so to speak, upon his right. This maxim has in fact been cited in some cases of the abandonment of arbi- tration reference"18 and the concept of "lapse" of power to pursue the reference within a reasonable time has also been considered in others,119 though neither solution has been held, for technical r to be applicable to such cases. Both French and English law recognise the exceptional effica silence for acceptance. French law has a much more extensive tre of exceptions concerning acceptance which have developed thr judicial decisions and doctrinal writings. Briefly, the silenc offeree may be considered acceptance in two broad types of sit one, where there has been a prior agreement or some prior de between the parties and the parties continue to act within the f work of such an existing relationship; and the other, in absence of p relations, when the custom of a trade recognises the validity of sile when the offer is exclusively to the advantage of the offeree. Under English law the treatment of silence has been, up to the ning of the last decade, a great deal more restricted than Frenc Cases on silence as acceptance are often individually treated wit attempt at systematisation. If the broader context of common law is to be taken into account by considering some American cases, then the gap between English and French law would narrow and exceptional instances of efficacy of silence as acceptance under French and English law would almost correspond. But a good number of cases cited out of other jurisdictions have not been judicially tested under English law and provide no more than a persuasive background than constitute a binding precedent. The only notable difference between French and English law on acceptance concerns the presumed acceptance of an offer which is exclusively to the advantage of the offeree, the main hurdle for its rec- ognition under English law being the doctrine of "consideration". But even in this regard there has recently been some idea under English law in a case on consensual abandonment of an arbitration reference which may be considered an approximation to the approach of French law, with the problem of consideration being resolved through the recipro- city of executory promises. The basic difference between the two systems today is on the effect of silence as an offer. French law follows the traditional pattern by reject- ing (except for a doubtful view) the
efficacy of silence as an offer. The reason is the general approach under French law to the concept of an agreement in terms of an "accord of wills", with the corollary that the offer is considered as constituting, technically, the contractual initiative and, as an initiative, not capable of being formed but through a positive expression. English law, though not analysing a contract in terms of the wills of the parties, was in practical terms in line with French law until the begin- ning of the 1980s. Since then, owing to the commercial exigency for set- ting stale arbitration references aside, the idea that an offer may be inferred from the inaction, or "silence", of the claimant over a substan- tial period of time has been recognised in some of these cases. Thus silence, as mere silence divorced from a context recognised by the law, is ineffective under both French and English legal systems; and, when it is held effective under either system, it is, technically, no longer silence but constitutes conduct which may, depending on factual circum- stances and the approach of the legal system, either be considered as expressing a contractual intention of the party concerned, whether as acceptance or offer, or simply be given effect to by the law independent of the intention of the parties.
