Can silence be a mode of acceptance in Malaysia PDF

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can silence be deemed as a mode of acceptance in Malaysia? tutorial work....

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Can silence be a mode of acceptance in Malaysia? Discuss with reference to decided cases. The issue is whether silence can be a mode of acceptance in Malaysia? According to S2(b) of the Contracts Act 1950. When the person to whom the proposal is made, signifies his assent thereto, the proposal is said to be accepted; a proposal, when accepted, becomes a promise. s.3 Contracts Act 1950 stated that “The communication of … the acceptance … are deemed to be made by any act or omission of the party … accepting … by which he intends to communicate the … acceptance … or which has the effect of communicating it”. However, the word ‘omission’ does not mean silence. The general rule is that silence cannot amount to acceptance. The rationale behind this is based on the idea that acceptance must take some form of objective manifestation of the intention of the offeree (i.e. the party to which an offer has been made) to accept the terms of the contract. Such intention is usually best expressed though some form of positive action. This is so as to ensure that no one can enforce a contract upon an unwilling party. *Felthouse v Bindley The plaintiff wrote to his nephew that “If I do not hear from you, I will assume that you have sold your horse to me for 301. 15s”. Afterwards, the nephew sees the note and is mentally prepared to sell the horse to plaintiff for $600. However, he fails to do so due to some mishandling by his agent. The courts will not find that his nephew has accepted the contract. This is because although he might have mentally accepted the contract, such acceptance had not been conveyed to the plaintiff. Hence, the plaintiff will not be able to bring a claim against his nephew for non-delivery of the horse. The decision in Felthouse v Bindley has been supported on three grounds. First, silence is ambiguous and it is difficult to infer from it an intention to accept. Secondly, acceptance must be communicated to the offeror so that he knows when a contract binds both parties. Thirdly, the rule prevents an offeror from exploiting an offeree’s inertia by making him contractually liable unless he takes the trouble to reject the offer expressly. However, there are exceptions to this, where by silence may amount to acceptance of the contract. One example is when the offeree has explicitly stated that he wants his silence to be regarded as acceptance of the contract. Using the previous hypothetical scenario, if we twist the facts to say that the plaintiff and his nephew have communicated with each other regarding the sale of the horse, and the plaintiff told his nephew that the nephew should write him a note about the sale of the horse and if the plaintiff does not receive any reply from him, the plaintiff may assume that his nephew has agreed to the sale. In such an event, should the nephew not reply to the

plaintiff, acceptance may be found and an enforceable contract may be come into existence to bind the two parties. In Re Selectmove Ltd, Peter Gibson LJ stated that: “Where the offeree himself indicates that an offer is to be taken as accepted if he does not indicate to the contrary by an ascertainable time, he is undertaking to speak if he does not want an agreement to be concluded. I see no reason in principle why that should not be an exceptional circumstance such as that the offer can be accepted by silence”. Hence, an acceptance to be effective must be communicated. The offeror and the offeree must indicate clearly that silence can be regarded as an acceptance to an offer that they agreed upon. In short, silence can be a mode of acceptance by agreement between the offeror and offeree. The Malaysia courts recognise the position that certain circumstances may lead to silence amounting to acceptance. However, it must be kept in mind that whether silence amounts to agreement is still an issue that the law will determine based on the given facts of the case, and that any conclusion is not limited to the above scenario....