When does silence imply consent?

Question

Does the saying qui tacet consentire videtur (silence implies consent) carry any weight in civil litigation?

For example, suppose that Alice emails Bob, "When I began work we agreed that the rate was $100/hour." Another email from Alice to Bob says, "I worked all weekend to fix that!" Years later these emails are admitted as evidence in civil litigation pertaining to money owed for work Alice did for Bob. Bob testifies that he did not agree with either assertion, but he can't produce any contemporaneous objection (e.g., a reply Email saying, "I disagree.")

Can a trier of fact (judge or jury) consider the lack of a contemporaneous objection as evidence of contemporaneous consent? Is there any law suggesting that such an inference should or should not be made?

(Interested in common law jurisdictions; U.S. in particular.)

Answer 1

Silence itself does not generally imply consent, but in the context of a history of transacting, silence in the face of continued actions by the other side can indicate consent. Here's a fun little example (Saint John Tug Boat Co. Ltd. v. Irving Refining Ltd., [1964] S.C.R. 614).

The plaintiff was a tug boat company who was providing tug services for the defendant who operated an oil refinery. The large crude oil tankers coming into the refinery needed tug guidance and the plaintiff provided this. There was an undisputed verbal acceptance of a written offer for services from June 13, 1961 to July 13, 1961. The agreement was expressly extended twice, each for two weeks, into August 1961. No further authorization for extension was made.

However, the plaintiff continued to provide tug service for the incoming tankers and continued sending monthly invoices to the defendant until February 1962. The defendant did not pay and denied liability for all charges after the middle of August 1961.

The trial judge said:

I find that the defendant knew that the Ocean Rockswift continued after August 1, 1961, in commission on call to assist and did assist the large tankers during the period in question, and that the plaintiff expected payment on a rental basis for its being kept in commission. The defendant had ample opportunity to notify the plaintiff that it did not accept any liability on that basis, but did not do so. The defendant acquiesced in the tug being so employed.

The Supreme Court of Canada quoted from Anson on Contracts:

So if A allows B to work for him under such circumstances that no reasonable man would suppose that B meant to do the work for nothing, A will be liable to pay for it. The doing of the work is the offer; the permission to do it, or the acquiescence in its being done, constitutes the acceptance.

And from Williston on Contracts:

Silence may be so deceptive that it may become necessary for one who receives beneficial services to speak in order to escape the inference of a promise to pay for them.

But the Supreme Court of Canada clarified:

... mere failure to disown responsibility to pay compensation for services rendered is not of itself always enough to bind the person who has the benefit of those services. The circumstances must be such as to give rise to an inference that the alleged acceptor has consented to the work being done on the terms upon which it was offered before a binding contract will be implied.

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This answer shows how silence can play a role from a pure common law contract perspective, without considering equitable principles. sjy's answer correctly adds that silence can be relevant to various equitable doctrines.

Answer 2

There's a pithy answer to this question in Silence as Acceptance in the Formation of Contracts (1920) 33(4) Harvard Law Review 595–598:

In the civil law, notwithstanding its usual subjective standard, conduct, which in the ordinary experience of life would be taken as acceptance, so is treated. Silence is acceptance when in honest and practical understanding it would be so considered.

Jen's answer contains a good explanation of how silence can constitute acceptance in contract law. However, as noted in the comments, there are other legal doctrines such as quantum meruit which may provide a more direct path, in appropriate cases, to the conclusion that a person is bound by an agreement they did not expressly accept.

The difference lies in the silent party's state of mind. If they did not actually intend to accept the contract by silence, but at the time of litigation they seek unconscionably to retain the advantage of work performed under it, it may be more accurate to say that they have been unjustly enriched, or are estopped from denying the contract.

Answer 3

When does silence imply consent?

The Restatement (Second) of Contracts at §69(1) lists the only three scenarios where "silence and inaction operate as acceptance":

• The offeree takes the benefit of offered services despite having reasonable opportunity to reject them.

• The offeror gave the offeree reason to understand that silence or inaction amounts to acceptance, and the circumstances suggest that the silent offeree intends to accept the offer.

• Previous dealings, such as longstanding relationships, supersede the general principle that offeree's silence is an impediment to the formation of a contract.

Related to the second scenario, Norcia v. Samsung Telecomm. America, LLC, 845 F.3d 1279, 1284-85 (2017) states that the offeree's silence constitutes consent "when the offeree has a duty to respond to an offer and fails to act in the face of this duty" (citing cases). This principle would not apply where "the offeree reasonably did not know that an offer had been made", Id, or where the offeree's lack of assent is clear from the circumstances, as allegedly was the case in Bozek v. PNC Bank, (3rd Cir., Sept. 2021).

Can a trier of fact (judge or jury) consider the lack of a contemporaneous objection as evidence of contemporaneous consent?

This depends on the circumstances.

In the scenario you outline, Bob's continued employment of Alice despite her email about the rate of $100/hour resembles the first scenario listed in the Restatement (the possibility formulated in Norcia that "the offeree reasonably did not know" of Alice's new clause seems inapplicable here). Accordingly, the fact-finder would have to ponder the timing of Alice's email(s).

Answer 4

In my field (civil site design engineering), we often have a lot of moving targets where the scope of work deviates either slightly or substantially away from what was originally stated in the proposal. Were we to always stop work, draft a new contract, and get it signed before proceeding, we'd have a lot ticked off clients whom have a lot of unreasonable deadlines.

To that end, our liability counsel has consistently advised us to provide e-mails as a minimum to establish that the work will be completed as requested, but notify the client that it's out of scope and will be completed on a T&M basis. Whenever I send such e-mails, there's very rarely a reply affirming receipt, however, at a minimum documentation has been provided to the client that there will be a bill on the back end of this.

Furthermore, when the client proceeds to utilize our work product to support their applications, it proceeds to further our future claim that the client accepts that the work was necessary to achieve their goal. Thus implied consent may be created.

IANAL, but I suspect the implied consent of using our out of scope work product coupled with the warning advisory e-mail becomes substantial evidence in a civil trial where the threshold is a preponderance of evidence rather than the beyond a reasonable doubt threshold required in a criminal trial.

Answer 5

Back when I was in the US Air Force, training as a Combat Medic, we had to know Emergency Medicine to a degree, NREMT Registry, as well as Nursing. And this question, while yes: it was US as per your preference, it was also over 20 years ago. That said, when asked this question on our tests, the answer was almost word for word in similarity with an NCBI Bookshelf page I found entitled Good Samaritan Laws - StatPearls - NCBI Bookshelf that is as follows,

"In legal terms, a good Samaritan is anyone who renders aid in an emergency to an injured or ill person. Generally, if the victim is unconscious or unresponsive, a good Samaritan can help them on the grounds of implied consent [emphasis mine]. If the person is conscious and can reasonably respond, a would-be rescuer should ask permission first."

I found this here.

Written by West B, Varacallo M., it continues with explaining that:

"The premise underlying the good Samaritan law traces its origin the ancient biblical parable, ultimately yielding the definition of a good Samaritan as an individual who intervenes to assist another individual without prior notion or responsibility or promise of compensation."[2](Article Ref #1)

I fear of possibility of citing/quoting too much from this/any one source, but it does mention that

"All 50 states and the District of Columbia have a good Samaritan law, in addition to Federal laws for specific circumstances." "...The details of good Samaritan laws vary by jurisdiction, including who is protected(physicians, emergency medical technicians, and other first responders) from liability and under what circumstances."

As I mentioned above, my fear is directly quoting too much. I can say though that I very highly recommend checking out this page, as it lists numerous examples that are very much what I would consider what you are looking for as far as implied consent, which, for much of this topic in general, there lie intricacies that are pursuant to other countries having differing laws for such good Samaritan scenarios, most of which are under no obligation to treat
any victims of accidents, natural disasters, and the like. I was surprised to learn (from this article) that because of the Opioid Crisis, there are certain cases now whereas before was nearly carved in stone as that which you may not help and still expect to stay under the protection of the Samaritan laws. But since drug overdoses are now the leading cause of accidental death in the US, certain areas have been opened up, if you like, that were before taboo, and according to this abstract, this is the case now in 40 States and the District of Columbia. I have pushed the limit of ways to state something without quoting or outright plagiarism. All I can say is I beg anyone, especially (obviously) the original person who asked this question. I can also say that--at least in the State in which I live--there is an outright obligation and duty to aid any person clearly in need of some assistance in the form of what would constitute a rescue of sorts. That State is Vermont. Good day, please go easy on me as I just signed up on this specific Exchange mere minutes ago. And, in case the link did not quite work, the site on which this article resides is as follows below. Thanks.
https://ncbi.nlm.nih.gov/books/NBK542176

Respectfully, MichaelTheGamer

[2]: Garneau WM, Harris DM, Viera AJ. Cross-sectional survey of Good Samaritan behaviour by physicians in North Carolina. BMJ Open. 2016 Mar 10;6(3):e010720. [PMC free article] [PubMed]

Answer 6

Offers must be accepted to form a contract

Or vary a contract. Or form a new contract that replaces an existing contract. Or etc.

Acceptance may be by word or deed and may be inferred by the finder of fact in the absence of clear evidence. So, silence, in the sense of passive inaction, is never consent (also true in cases off sexual assault). Silence in the sense of not speaking or writing something but performing a deed which indicates consent is consent.

Your example is incomplete: we know what Alice is asserting in her case (X hours at $50/h) but you have not told us what Bob’s case is. Is he completely denying liability? Is he contesting the rate? Is he contesting the hours?

Also, your example seems to be more about absence of evidence of consent than absence of consent.

Answer 7

If the email was replied to, actual knowledge of the assertion on the arrangement will hardly be found, but clear and convincing to be taken as a fact; the onus will shift to Bob he did not have actual knowledge of this fact to be considered in what the reason was for not objecting then and there.

If Bob fails to rebut the finding of actual knowledge of the hourly rate assertion, it will be treated as fact.

Most states decide civil cases with a burden of proof set at the preponderance of the evidence which means the one having the burden of proof has to show, more like than not or greater than 50%, that a claim is true.

With the Knowledge Fact, the jury will have to weigh whether the possibly sole consideration (money) and its specific volume Alice was promised would have such importance that a reasonable person would object to should it have been false——negligently, recklessly or knowingly——by Alice.

It is easy to see how a common-law cause of action for fraud could emerge out of this, too——omission to disclose is a form of misrepresentation needed for civil fraud. If Alice was mistaken in good faith, and Bob did not inform Alice of this fact, it may have affected the performance of the contract, and Bob may have gotten such consideration (a better quality of service) from Alice which was merely provided for the greater or existent financial consideration.

Whether or not the volume of the consideration Alice presumptively relied on was material in the quality or extent of the performance of whatever duty she undertook, it is hard to imagine how the weigh of the evidence would favor Bob, and the jury would not find that Bob needed to, in fact, raise objection since the Knowledge of Fact. And that is in most cases the threshold to meet.