When someone makes you an offer and you do not respond to it, you normally will not be bound to a contract. Your silence is generally not considered an acceptance if you do not truly intend to accept. This is generally true even if the person making the offer specifically says that your silence is considered an acceptance.
Can Silence Ever Be Treated As An Acceptance?
Yes, but only in some instances. In order for silence to be considered acceptance, there usually are some prior dealings between the two parties and that it is customary for the two parties to treat silence as an acceptance.
Another way that silence may be considered acceptance is where both parties have agreed that silence can be treated as acceptance.
Finally, if the party remaining silent acts on the agreement, then the silence will be treated as acceptance. In the case of unsolicited merchandise, if the potential buyer uses the merchandise, then the buyer has accepted the contract. For example, suppose that A sends B some food and A informs B that A expects payment. If B eats the food, then B has consented into the agreement.
What Are the Requirements of Interpreting Silence As Acceptance?
In order to treat silence regarding an offer as an acceptance of a contract, there must be:
- No express contract – Only one party has made an offer while the other party has not agreed to it.
- The offeror renders a service – The party which wants a contract does a service, or offers to do a service or sends something to the offeree.
- The offeror gives notice that he/she desires something in exchange – The offeror must make his intent to receive payment known. If there is no notice, there can be no contract and the service may be treated as a gift.
- The offeror does this without being requested to do so – The offeror does the service of his own free will without being prompted by the offeree or anyone else.
- The offeree has knowledge of everything state above – The person or party receiving the service is aware or should be aware that the offeror desires something in return.
- The offeree uses or accepts the service in some way – The person or party receiving the service does something which could be interpreted as acceptance.
Do I Have To Buy Unsolicited Items Mailed To Me If The Sender Claims I Must Pay for Them?
Most likely no. You are not obligated to do anything when someone sends you goods you have not asked for and asks you to buy them. Your inaction generally will not bind you to a contract to purchase the goods, and the other party cannot sue you for breach of contract if you do not pay for them. In many states, the unsolicited items are treated as gifts.
For example: B sends C 10 DVDs and says to C, "If you do not respond back in three days, you will have agreed to purchase the DVDs." C does not respond in three days and does not intend to buy the DVD. There is no contract between B and C to purchase the DVDs.
Does This Rule Cover Things Other Than The Sale of Goods?
Yes. Your silence normally will not bind you to a contract to perform services. Services can be almost anything performed by an individual or group, such as mowing a lawn or helping a friend move.
Can I Keep The Unsolicited Goods Send To Me?
This will depend on the state you reside in. In some states, you may not keep and use the goods (unless the seller makes it clear that you can keep them without any obligations) as if you own them. Normally, the seller should provide you ways to send the goods back to him/her at his/her expense. You should not be required to incur your own expenses to send goods that you did not ask for back to the seller. If you do not return the goods, you may be deemed to have accepted the offer and entered into a contract.
In other states, the unsolicited goods are treated as gifts. This means that you own the items and you can do whatever you want with them.
Do I Need a Lawyer?
The rules of contracts often vary from state to state. If you have questions about whether there has been valid offer and acceptance to a contract, a business attorney familiar with contract law and contract drafting and review can help.