Contract Formation Acceptance in UK Law

The fact that the transaction was performed on both sides will often make it unrealistic to argue that there was no intention to enter into legal relations. It will often make it difficult to submit that the contract is void for vagueness or uncertainty. Specifically, the fact that the transaction is executed makes it easier to imply a term resolving any uncertainty, or, alternatively, it may make it possible to treat a matter not finalised in negotiations as inessential.

In a case where the transaction was fully performed the argument that there was no evidence upon which the judge could find that a contract was proved is implausible. Thus in Brogden v. Metropolitan Railway, supra, decided in 1877, the House of Lords concluded in a case where the parties had acted in accordance with an unsigned draft agreement for the delivery of consignments of coal that there was a contract on the basis of the draft.

One must not lose sight of the commercial character of the transaction. It is not a case where there was a continuing stipulation that a contract would only come into existence if a written agreement was concluded. But I am, in any event, satisfied that in this fully executed transaction a contract came into existence during performance even if it cannot be precisely analysed in terms of offer and acceptance.

Although the formation of contract is conventionally analysed in terms of whether a contractual offer was accepted, the law does not require rigorous compliance with an analysis along these lines. Nor does it require that any particular communication or act must in itself manifest that the party intends to contract: the court will, if appropriate, assess a person's conduct over a period and decide whether its cumulative effect is that he has evinced an intention to make the contract.

The judgments of this court in Dacas and Muscat were cited and analysed. It was correctly pointed out (paragraph 35) that, in order to imply a contract to give business reality to what was happening, the question was whether it was necessary to imply a contract of service between the worker and the end user, the test being that laid down by Bingham LJ in The Aramis [1989] 1 Lloyd's Rep 213 at 224

First, the fact that the CVA has contractual effect does not mean that it has every attribute of a contract or that every principle of the law of contract applies to it.