Acceptance

An unqualified assent, by words or conduct, to the terms of an offer: Anson**.** Whether there has been acceptance of an offer is determined objectively: Taylor v Johnson. Any variation is a counter-offer and constitutes rejection of the first offer


 * (I) What constitutes acceptance? **


 * (a) Is there something capable of being construed as acceptance? **
 * Offeree accepts offer if offeree **//behaves//** in such a way that a **//reasonable person//** would believe he/she is **//assenting to the terms of an offer//**, even if there is no real consensus between the parties.
 * Objective test- if it **//appears//** (through behaviour of offeree) to be behaviour indicating acceptance, then is acceptance concluded. Subjective intention of the offeree is **//not//** considered (thus, if offeree doesn’t want to accept, but behaves as they do [as per reasonable person test] then they will be viewed as having accepted that offer regardless.


 * (b) Relationship between offer and acceptance **
 * An acceptance is an unqualified assent to the terms of an offer
 * Acceptance occurs when the offeree responds to the offer, before it has expired, by: making a promise to the offeror (bilateral); **OR**
 * by performing the acts specified in the offer (unilateral)
 * Acceptance **//must//** correspond with the offer: Butler Machine Tool v Ex-Cell-O Corp
 * Acceptance **//must//** be in response/reliance of an offer and not for some other purpose: The Crown v Clarke
 * Offeree cannot accept in ignorance of an offer: The Crown v Clarke


 * (II) Who can accept the offer? **


 * (a) Offer can be made to: **
 * An offer can be accepted by any person to whom the offer is made: Carlill
 * Individual
 * Group of people
 * Other legal entity (corporation)
 * Whole world


 * (III) Communication of acceptance **

Acceptance only effective when communicated to offeror: Byrne and Co v Leon Van Tienhoven and Co. It must be accepted **//unequivocally//** through words/conduct: Brogden v Metropolitan Railways


 * (a) Types of acceptance **

__ Verbal acceptance __
 * Face-to-face; Telephone
 * acceptance effective only when **//received//** by the offeror: Entores Ltd v Miles Far East Corporation

__ Written acceptance __
 * Letter; (acceptance when **//sent//**)
 * Email; Facsimile; Telex etc. (acceptance when **//received//**- in Brinkibon court ruled that telex is like other instantaneous forms of communication i.e. like email, and is more analogous to verbal rather than written letters)

__ Acceptance by conduct __
 * performance of required actions (unilateral- Carlill)


 * (b) Basic rule **
 * Acceptance **//must be communicated//**- bilateral contract
 * But, if unilateral contract, then offeror can expressly or impliedly **//dispense with//** the need for **//actual communication//** if:
 * communication of acceptance in performance of condition (**//act = acceptance//**): Carlill
 * the offeror may treat the despatch of an acceptance **//by a particular method as effective//**, whether on not the acceptance is received by the offeror
 * Communication of acceptance occurs **//when//** and **//where//** the fact of acceptance reaches the offeror: Byrne & Co v Leon Van Tienhoven
 * Acceptance must be communicated by the offeree or his agent; C.F. the communication of revocation of an offer- that is effective **//regardless of who communicates it, provided it is the offeror who is told://** Dickinson v Dodds


 * (IV) Method of acceptance **

A person who makes an offer can stipulate a **//particular method//** of acceptance. Any subsequent acceptance must comply with such requirements to be effective. If an offer prescribes an **//exclusive method//** for the communication of acceptance, then only an acceptance communicated **//by that method//** will be effective.

her silence, as signalling to the offeror that their offer has been accepted?”: Empirnal
 * (a) Silence and acceptance from inferred conduct **
 * Test ** : “would a reasonable bystander regard the conduct of the offeree, including his or


 * Silence **//cannot//** be valid acceptance: Felthouse v Bindley//__–__// this is because it is contrary to will theory of consent, which is so important to classical contract law.
 * **// Exception //** : when there is silence but there is also conduct: **//silence + knowledge of a state of affairs + retaining a benefit can = Acceptance//**: **//__Empirnal__//**


 * (b) Postal acceptance rule **
 * Where offer species acceptance by post, acceptance is immediately effective on the posting of a properly addressed reply (**//NOT//** at the time of receipt)
 * Acceptance is effective on posting **//even if//** the offeror is ignorant of the posting of the letter **//or//** the letter is lost in post and not received by the offeror: Adams v Lindsell
 * Acceptance occurs **//when//** and **//where//** letter is posted: Brinkibon
 * This rule applies to cases where it must have been within the ‘**//contemplation//** of the parties... that the post **//might//** be used as a means of communicating the acceptance of an offer, the acceptance is complete as soon as it is posted: **Lord Hershall at [33], Henthorn v Fraser **
 * **// Note: //** if a party expressly requires that the communication of acceptance be valid once ‘notice in writing is received by me’ then simple posting of a letter would **//not//** suffice: Bressan v Squires
 * The postal acceptance rule is limited in its operation.
 * If post as method of acceptance not in contemplation of parties, then no acceptance has occurred in this way. Thus, no agreement formed.
 * PAR applies to telegrams and post. NOT TO REVOCATION OF AN OFFER: __Byrne__
 * The contract is made when and where acceptance is received: Brinkibon v Stahag Stahl**__.__**
 * Only in situations where the acceptance is intended through postage should it be considered as an acceptance. Actual communication is necessary to the conclusion of an agreement: (**Dixon CJ & Fullagar J**) __Tallerman & Co v Nathan’s Merchandise__**.**

// Electronic Transactions Act // (1999) (Cth), s 14-15 // Electronic Transactions Act // (2000) (Vic), s 3 & 13
 * (c) Electronic communication **
 * Domestic statutory provisions relating to electronic communications: **
 * For instantaneous communication: contract forms **//when//** and **//where//** acceptance **//is communicated//** to offeror (eg in Vienna) – phone, fax, telex. (like verbal acceptance)
 * Instantaneous communication principle applied to facsimile messages in __Reese Bros Plastics Ltd v Hamon-Sobelco Australia Pty Ltd__


 * NOTE EMAIL: ** If designated (expressly specified for purpose), acceptance when enters system.
 * More commonly in electronic communication, **// acceptance when received //** **//__ETA Vic 2000__//**


 * (V) Conformity of Acceptance with Offer **


 * (a) Acceptance must conform/correspond to the offer **
 * Method of acceptance
 * Rejection: thus, the offer empowers the offeree to do no more than accept or reject the terms proposed by the offeror
 * Counter-offer: If the offeree attempts to vary the terms proposed, or to add additional terms, then the acceptance will be a counter-offer (which will give rise to a contract only if it is accepted by the original offeror)


 * (VI) Agreement without Offer and Acceptance: Problems with traditional offer and acceptance formula **

Not always easy to determine the existence of concluded contract: __Gjergja v Copper__**.** The **//acid test//** ‘is whether, viewed as a whole and objectively from the point of view of reasonable persons on both sides, the dealings show a concluded bargain.’ **Cooke J,** __ Meates v Attorney-General __. The authorities on this point were reviewed by **Heydon J in** __ Brambles __, who concluded the following—

1. agreement can be inferred 2. mutual assent has been manifested 3. A reasonable person in position of each of the parties would think there was a concluded bargain.
 * (a) Where no offer and acceptance is identified, need to ask whether: **
 * Heydon JA, __Brambles Holdings Ltd v Bathurst City Council__—
 * The situations in which agreement can be found without offer and acceptance are few.
 * In most cases there is a clear offer and a clear acceptance and the strict rules covering those requirements continue to apply.
 * In __Toyota v Ken Morgan__, the court suggested that the concept of finding agreement without offer/acceptance is ‘[not] easy to comprehend’.


 * ‘Battle of the forms’ (//__Butler)__// **
 * Where two parties exchange inconsistent standard forms during contract negotiations, and reach agreement on the principle terms without deciding whose standard form should prevail: **//__Butler Machine Tools v Ex-Cell-O Corp__//**
 * The judgments in Butler suggest 2 different methods for resolving the battle of the forms:


 * 1) **__ Conflict approach __**
 * treats the exchange of terms as a battle
 * battle won either by- party who fires the last shot, OR by the party who is most persistent in insisting that their own set of terms should prevail


 * 1) **__ Synthesis approach __**
 * requires the court to build a contract from the two sets of terms
 * the synthesised contract would be made up of consistent terms, and terms from one set accepted by the other party. Any gaps would be filled with implied terms by the court
 * Lord Denning suggested in Butler that synthesis should be the last resort