Prof Richard Taylor, Damian Taylor. Contract Law Directions (6 edn, 2019). p 41.

Kindly see the last sentence, emboldened, at the bottom.

Acceptance by silence

The law often makes a distinction between positive conduct and omissions—in criminal law it is an offence to push a man off a cliff but not normally an offence to omit to call a warning before someone steps off the edge. The same is true in contract law. Whilst conduct may amount to an acceptance, doing nothing, i.e. silence, will rarely count. The reasoning is the same as in other areas of law; a man must not be put under a duty to act without good reason. If silence was readily accepted as a mode of acceptance in contract law then I could go around telling everybody in sight that I would assume they had accepted my offer to buy all their property for 10 pence if I did not hear from them within one hour. This would place a duty on everybody I met to reject my offer within one hour if they did not want to be bound—clearly a ridiculous situation. Therefore, the general rule established in Felthouse v Bindley (1862) is that silence cannot constitute an acceptance. In that case a nephew and his uncle had negotiated the sale of the nephew’s horse. They misunderstood each other and became confused about the agreed price. In a letter, the uncle suggested that they split the difference and that if he heard no more about it he would consider the sale done for this middle price. The nephew said nothing more to the uncle but clearly accepted the new price because he told his auctioneer to withdraw the horse from auction in which it was to be sold as he had already sold it to his uncle. The auctioneer nevertheless sold the horse in the auction by mistake and the uncle sued him for interfering with his property rights over the horse (known as the tort of conversion). It was held that the uncle had not become the owner of the horse, and therefore had no title to sue, because the contract of sale between the uncle and nephew lacked an acceptance and so never existed. You should note that it was the uncle (the offeror) who claimed there was a contract and it was he who had introduced the idea that acceptance could be by silence—if instead it had been the nephew, who sought to enforce the contract, a different result might have been appropriate.

  • 2
    I'm voting to close this question as off-topic because This is not a question of law: the author says specifically that the law might have been engaged if the nephew had sued. Oct 29, 2019 at 10:03
  • @TimLymington Litigation is on-topic : law.stackexchange.com/questions/tagged/litigation.
    – user89
    Oct 30, 2019 at 7:39
  • @TimLymington 1st : "the author says specifically that the law might have been engaged if the nephew had sued" That's not what the author wrote. 2nd. litigation is on-topic : law.stackexchange.com/questions/tagged/litigation.
    – user89
    Oct 30, 2019 at 8:32

1 Answer 1


Because he has no dispute with anyone

Or at least, none he was willing or able to sue over.

While the auctioneer had sold the nephew's horse after being told not to, if the nephew was happy with the price he obtained then he doesn't have to sue the auctioneer for screwing up. Furthermore, if the price the auctioneer obtained for the nephew was greater than would have been obtained from the uncle, it would appear the nephew had suffered no damage from the auctioneers mistake - the legal equivalent of no harm, no foul. You can't sue someone if they didn't cause you damage.

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