Contract Law

 CLARIFYING THE ROLE OF SILENCE IN CONTRACTUAL CONSENT Anthony Goodnuff Appiah Larbi [1] Introduction It is usually said silence means consent in our everyday statements. This reminds me of my Senior High School (SHS) days. My Elective English Literature teacher, Mr. Afful[2], in one of his comments to make class interesting said, gone were the days when there were no mobile phones and when you met a lady and expressed love to her, if she responded by using her foot to create art or writing on the ground, verbal confirmation was unnecessary. According to him, the lady’s silence, expressed through actions, indicated her acceptance of your romantic proposal. At this point, it was clear that the next step was to move forward and deepen the bond of affection between you and the lady. Every guy knows what to do next. Smile and let us proceed with the gravamen of this topic. In the realm of Contract Law, the debate surrounding the role of silence revolves around the question of whether silence alone can be considered as constituting consent to a contractual agreement. On one side of the argument are those who assert that silence should be interpreted as consent in certain contexts, especially where there is a pre-existing relationship between the parties or a course of dealing that suggests acceptance through silence. This perspective often emphasizes the efficiency and practicality of recognizing silence as a form of agreement, particularly in situations where explicit consent may be impractical or unnecessary. On the other side of the debate are those who contend that silence should not be presumed to indicate consent as it may lead to misunderstandings and disputes. This viewpoint emphasizes the importance of clear and unambiguous communication in contract formation, arguing that consent should be based on affirmative or explicit agreement to ensure mutual understanding and prevent coercion or exploitation.   The debate highlights the tension between flexibility and certainty in the Law of Contract as well as the need to balance principles of autonomy and fairness in determining the role of silence in contractual consent. Let us now delve deeper into this issue to gain a better understanding of its implications.   The Conundrum of Contract and Agreement A contract may be made orally or in writing or in a formal written document (Called a deed). Most people are likely to make at least one contract everyday of their lives.[3] Goods are bought and sold at specified prices and payment terms are agreed upon;[4] each time one spends money on anything a newspaper, a bus ticket, an airline ticket, a pair of shoes, a meal in a restaurant, laundry services, books, or signs a lease, one concludes a valid and legally binding contract.[5] We enter into contracts on daily basis; sometimes we enter into contracts without knowing we have done so.[6] Contract is universal in our everyday transactions. The elements of a valid contracts are agreement (offer and acceptance), consideration, capacity and the intention to create legal relations. In Forson v. Koens and Another,[7] Edusei J held that, “The general principle of the law of contract as regards its formation is the concurrence of three distinct elements-agreement, consideration and the intention to create legal relations. This is common law standpoint.”[8] So in determining whether a contract has been formed, what the law looks for is the outward manifestations of an agreement, not speculation. Agreement is not a mental state but an act, and as an act, it is a matter of inference from conduct. The principle of law established in Fofie v. Zanyo[9] is that before it could be said that there has been an acceptance of an offer by an offeree, there has to be (a) positive evidence by words, in writing or by conduct from which the court might infer acceptance; and (b) the acceptance must have been communicated to the offeror. The parties are not to be judge, not by what is in their minds, but by what they have said or written or done.[10]   It is trite legal principle that a proposal (termed offer) and acceptance are mere agreement.[11] These two requirements form the foremost elements of a valid contract. For an agreement to qualify as a contract, the law requires that certain ingredients must be present.[12]  What distinguishes a contract from a mere agreement is the fact that, if one of the parties fails to honour or discharge his promises, the other party may take legal action against the party in default. Larbi (2020) recognised that “in the mathematical expression, contract is a subset of Agreement”.[13] So in legal terminology, while a contract is indeed a fraction of an agreement, it is important to note that not all agreements necessarily qualify as contracts. Contracts entail specific legal elements such as offer, acceptance, consideration, and intention to create legal relations, distinguishing them from mere agreements which may lack the enforceability or formality required by law.   The Principle of Mutual Assent The fundamental requirement of mutual assent, also known as “consensus ad idem“[14] is a cornerstone principle in contract formation in Law of Contract.[15] This principle stipulates that, for a contract to be valid and enforceable, there must be mutual agreement or understanding between the parties involved.[16] In essence, both parties must consent to the terms of the contract and agree to be bound by its provisions.[17] Mutual assent typically involves two key components; and they are Offer[18] and Acceptance[19]. Significantly, for mutual assent to be established, both offer and acceptance must be made with the intent to create a legally binding agreement. This means that the parties must have a genuine intention to enter into the contract,[20] free from coercion, illegality, fraud, undue influence, misrepresentation or mistake.[21]   Additionally, the terms of the offer and acceptance must align without material alterations or modifications. If the offeree[22] attempts to change the terms of the offer in his or her attempt to accept the offer, this would generally be considered a counter-offer[23] rather than