Felthouse v Bindley [1862] 11 CBNS 869 is the primary authority that silence does not amount to acceptance.

Facts of the Case

The case concerned ownership of a horse. Paul Felthouse (the uncle) negotiated to buy a horse from his nephew, John Felthouse. They disagreed on price — the nephew wanted 30 guineas, the uncle offered £30 — and the uncle eventually wrote offering to “split the difference” at £30 15s, concluding: “If I hear no more about him, I consider the horse mine at 30l 15s”.

The nephew did not reply but clearly intended to accept; he told his auctioneer, the defendant Bindley, to keep the horse out of the sale. The auctioneer mistakenly sold it. The uncle sued the auctioneer for conversion, which required him to prove he had legal title through a binding contract.

Key Legal Principles and Decision

Willes J held there was no valid contract at the time of the auction:

  • Silence is not acceptance: acceptance must be a final and unqualified expression of assent; silence is “equivocal”.
  • No “imposed” contracts: an offeror has no right to “impose” a bargain by stipulating that silence will be treated as consent.
  • Communication requirement: acceptance must be properly communicated; the nephew’s uncommunicated mental intention did not bind the parties.

Discussion and Academic Commentary

  • Rationale: the court’s concern was preventing offerors forcing obligations onto others — otherwise traders could send unwanted goods and claim a contract on silence.
  • Consensus ad idem: commentators like Morgan note the nephew’s withholding of the horse actually indicated a meeting of the minds, suggesting the case is better understood as a requirement for legal certainty.
  • Criticism: Professor Miller argues that, since both parties believed the horse sold, there was no practical reason to deny a contract.
  • Subjective/objective conflict: though contract law generally uses an objective test, the courts will not let an offeror simply “assume” acceptance from a lack of response.

Related Cases

  • Re Selectmove (1995): affirmed the rule but noted a limited exception where the offeree suggests their own silence should count as acceptance.
  • Rust v Abbey Life Assurance Co Ltd (1979): exceptionally, acceptance was inferred from seven months of silence as an “inevitable inference” from conduct.
  • Brogden v Metropolitan Railway (1877): conduct can amount to acceptance even without words, provided it is a positive act.
  • Adams v Lindsell (1818): the postal rule, an exception to the communication requirement.
  • Entores Ltd v Miles Far East Corporation (1955): for instantaneous communication, acceptance is valid only on receipt.
  • Carlill v Carbolic Smoke Ball Company (1893): a unilateral contract where the offeror waived the requirement to communicate acceptance.
  • Centrovincial Estates plc v Merchant Investors (1983): contracts must result from an objective consensus ad idem.