FELTHOUSE v. BINDLEY RE‐VISITED
| DOI | http://doi.org/10.1111/j.1468-2230.1972.tb02361.x |
| Date | 01 September 1972 |
| Author | C. J. Miller |
| Published date | 01 September 1972 |
FELTHOUSE
TI.
BINDLEY RE-VISITED
AN interesting and unresolved point which has given rise to a
certain amount of academic discussion is that of the extent to
which
it
is open to an offeror effectively to waive the need for
any formal communication of acceptance. Here, it appears, an
initial distinction must be drawn between unilateral and bilateral
contracts. In the potentially unilateral contract the position is
reasonably straightforward. The offeror will normally be impliedly
taken to have waived the need for communication and
it
is clear
that
it
is competent to him to do this. Performance by the offeree
of the requested act will generally suffice and notification of an
intention to perform is unnecessary.2 Authority for this general
proposition is to be found in the well known case of
Carlill
v.
Carbolic
Smoke
Ball
CO.~
Here,
it
may be remembered, the plaintiff
successfully claimed that she was entitled to the sum of
2100
which
had been advertised as being payable to anyone who caught influenza
after using the defendant’s smoke ball in the prescribed manner and
for the prescribed period of time. The Court of Appeal emphatically
discounted the need for any communication
of
acceptance by the
offeree and, taking an analogous example of a reward for finding a
lost dog, Bowen
L.J.
said,4
‘‘
The essence of the transaction is that the dog should be
found, and
it
is not necessary under such circumstances, as
it
seems to me, that in order to make the contract binding there
should be any notification of acceptance.
It
follows from the
nature
of
the thing that the performance of the condition is
sufficient acceptance without the notification of
it,
and a person
who makes an offer in an advertisement of that kind makes
an offer which must be read in the light of that common-sense
reflection. He does, therefore, in his offer imdiedlv indicate
that he does not require notification of the acieptaAce of the
offer.
”
The position in the potentially bilateral contract
is,
however,
more complicated. Of such cases one can safely say that it is not
open to an offeror to stipulate as against an unwilling offeree that
the latter’s silence will be regarded as equivalent to acceptance. He
1
See,
e.g.
Cheshire and Fifoot,
Law
of
Contract,
7th
ed., at pp. 3940; Anson,
Law
of
Contract,
23rd ed., at pp. 41-43; Treitel,
Law
of
Contract,
3rd ed., at
pp. 17-18, 3032; Atiyah,
The
Law
of
Contract,
2nd ed.,
at
pp. 49-45.
2
As,
however, Atiyah has pointed out
(op.
cit.
at p.
45)
the offeree will, in the
nature of things, inform the offeror once he has completed the requested act
and, strictly speaking, it is only at this stage that one can properly talk
of
a
communication of acceptance.
3
[1893]
1
Q.B.
256.
4
Ibid.
at p. 270.
489
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