L2301 Week 5 Lesson 2

Aspects of acceptance - continuation

In the previous class, we said that the offeree must have Animus to be bound by
obligations set out in the offer. They must manifest their acceptance.

Their acceptance must be:

a) Be unequivocal
b) Correspond in content with the offer/ unconditional;

We will now look into the (b) bove, that

b) Acceptance must correspond with the offer

i. The offeree must accept the terms of the offer as set out in the offer.

If the offeree wishes to accept an offer but on different terms, then the act of the
offeree constitutes a counter offer, thus rejects the offer.

See Watermeyer v Murray 1911 AD 61

Facts: Watermeyer offered to sell his piece of land to Murray and proposed that
deposit must be paid on the date of signature of the agreement. Murray
purported to agree but stated that deposit will be paid on a different date.

Held that Murray’s response was a counter offer which caused Watermeyer’s
offer to lapse.

ii. The acceptance must be unconditional.

See Legator McKenna v Shea [2009] 2 ALL SA 45

Facts: a couple offered to buy property belonging to S and directed the offer to
his curator bonis. A curator bonis is a legal representative appointed to handle
financial affairs of another person who is unable to do so because of mental or
physical incapacity. The curator bonis purported to accept the offer but
indicated in brackets after his signature that ‘subject to approval of Master of
High Court’.

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Held: the words rendered the agreement of sale conditional upon the Master’s
approval.
The response was therefore not an acceptance but a counter offer.

As general rule an acceptance may not add or subtract anything from the offer.
If it does so, it will amount to a counter offer and the offer will lapse by
rejection.

There are exceptions to the general rule (these incidents are distinguished
from conditional offer or counter offer). They are the following:

1. An inquiry on whether an offeror may accept different terms,

eg. Would you be willing to sell the property at a lessor price?

2. A comment on the offer,

eg. This price you are charging is too high for the article! I believe
M200 would have been more reasonable.

3. An incomplete or partial acceptance.

eg. where an offer has three terms, the offeree accepts two of the
terms and remains silent about the 3rd term, then accepts the 3rd
term at a later stage.

– since he introduced no new terms on his partial acceptance, his

response will not constitute a counter offer. It is a partial acceptance.

4. Acceptance coupled with a request for modification of terms:

eg, in Amalgated Society of Woodworkers v Shoeman 1952 (3) SA 85

Facts: Where X was offered a job. He thanked the society for the
appointment and said he is in agreement with them. But requested that
certain terms of the contract be modified, eg that he submit reports under
the contract on definite periods.

Held: that X accepted the offer with requests for slight modification of
the terms.

He had not insisted that terms be changed, or impliedly refused the offer
by making counter offer.

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 The third aspect of acceptance looks at the:

c) Method of acceptance

i. The offeror is entitled to stipulate the method of acceptance. In such a

case, the acceptance must be made in the manner prescribed by the
offeror to be valid. If the method the offeror stipulated is not observed
by the offeree in his response to the offer, no contract will be formed.

Eg. Where offeror indicates in the offer that acceptance must be made in
writing and sent to the offeror, but the offeree responds by making a
telephone call to the offeror to communicate his acceptance. Then no
acceptance has been made, and no contract will be formed.

See Laws v Rutherford 1924 AD 261

Where an offeror requested the offeree to cut her timber at a certain price,
and further requested that acceptance of the offer must be sent to her by
telegram before a certain date. Instead the offeror proceeded to cut the
offeror’s timber.
The court held further, that there was no contract as the offeree had not
followed the prescribed mode of acceptance of the offer.

NB. Where the offeree follows the method of acceptance prescribed by the
offeror, a contract will be formed even if the method was unsuccessful in
communicating the acceptance.

Eg, where offeror gives his physical address for delivery of acceptance.
When the offeree delivers the letter of acceptance to the address, he finds the
house empty, so slips the letter under the door. The contract is formed here even
if the offeror learns of the letter after the offer expired.

See Amcoal Collieres v Truter 1990 (1) SA 1

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 ii. Silence as acceptance

An offeree’s silence or failure to respond to an offer does not automatically

imply acceptance of the offer.

The silence could be attributed to a number of factors eg

- The offeree is still thinking about the offer,

- The offeree does not want to accept the offer and is not willing to waste
his time communicating the rejection, or
- He has not yet thought about the offer.

The general rule is that silence will be considered as acceptance of an offer

where the offeree is under a ‘duty to speak’ if he does not want to accept the
offer.

If there is no duty to express his rejection, he will not be bound.

Whether the duty to speak exists will be determined by:

- Circumstances of the case
- The relationship of the parties
- Previous dealings of the parties

Eg, where A usually sends B some goods, and B sends a cheque as payment for
the goods. When B no longer wants the goods, he has a duty to speak and tell A
that he rejects the goods and will not pay for them. B cannot just keep silent,
otherwise A will interpret the silence as acceptance of the goods.

Note: As a rule, the offeror cannot, without the consent of the offeree,
impose a condition on the offeree, that his silence will be construed as
acceptance.

For example, in Felthouse v Bindley (1862) 11 CB 869

Facts: Where F offered to buy his nephew’s horse at a particular amount. He

wrote to the nephew stating that if he hears nothing from the nephew about the
horse, then the horse is his for that amount. The nephew did not respond. Six

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weeks later, the horse was sold in an auction together with other goods of the
nephew. F sued the auctioneer for damages in that the auctioneer sold his horse.

Issue: Was F’s act of imposing a condition on his nephew that his silence will
be construed as acceptance acceptable?

Held that the imposed condition on the nephew was unacceptable. No contract
had been formed between F and his nephew, hence he suffered no loss upon
auction of the horse.

See also Collen v Rietfontein Engeneering works 1948 (1) SA 413 at 422.

However, silence coupled with positive conduct by the offeree, may constitute
acceptance.

For example: Where the offeree makes beneficial use of the goods
: Or exercises ownership over the goods

See Charles Velkes Mail Order v Commissioner of Inland Revenue 1987 (3) SA
345.

Note that: Quiescence (silence) is not necessarily acquiescence (reluctant

acceptance of something without protest). That is, inaction is not submission.

Prepared by: Dr. M. Kulehile

Faculty of Law
National University of Lesotho
Roma

Date: 22 November 2022