North South University

Assignment cover page

Department of History
LAW200

Student Name: Md. Ahanaf Thamid

ID- 1912802630

Sec - 23

Course name and code : LAW200

Course Instructor-Arife Billah (AFB) SIR

Date of submission: 26 AUGEST 2020

Title of the Article topic:

"A mere mental acceptance, not evidenced, by words or conduct is, in the eye of
law, no acceptance. Explain"
Research Paper Title

"A mere mental acceptance, not evidenced, by words or conduct is, in the eye of law, no acceptance.
Explain"

A Research Paper submitted to the University of North South University for the

Course of (Law200) in the Faculty of

Humanities.

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Title: "A mere mental acceptance, not evidenced, by words or conduct is, in the eye of law, no
acceptance. Explain"

Abstract or summary :
TABLE OF CONTENTS

Introduction………………………………………………………………………....Page 1

accptance

 what is an Acceptance
 what is an offer
 types of Acceptance
 who can accept ?
 General Rules as to Communication of Acceptance
 legal rules regarding a valid acceptance
 what is essential for a valid acceptance
 • what will account as non-valid acceptance by the law
 Revocation of acceptance

 What is conduct ?Acceptance by conduct or word

 Essentials of a valid offer

Essentials of a valid acceptance…………………………………………………….Page 7

Authorities explaining mere mental acceptance………………………………..…Page 9

Bibliography………………………………………………………………………...Page 11
What is Acceptance :

Acceptance – "An express act or relationship by conduct that manifests assent to the terms of an
offer in a manner invited or required by the offer so that a necessary contract is formed. The
exercise of the power conferred by an offer by performance of some act. The act of a person to
whom something is offered or given by another, whereby the offered demonstrates through an
act invited by the offer an intention of learning the subject of the offer1."

Examples: A trader receives an order from a customer and executes the order by sending the
goods. The customer's order for goods constitutes the offer which was accepted by the trader by
sending the goods. It is a case of acceptance by conduct. Here the trader is accepting the offer by
the performance of the act.

Acceptance is a last and unqualified expression of assent to the terms of an offer. Material test of
agreement applied to an acceptance no shorter than to an offer. Mere acknowledgement of an
offer would not be acceptable.

The mere acknowledgement of an offer in the sense of information stating simply that the offer
has been accepted would likewise not be an acceptance. But an acknowledgement maybe its
express terms or in a particular context by implication, contain a statement that the sender agreed
to the terms of the offer and that he was, therefore, accepting it2.

When the person to whom the proposal is made signifies his assent thereto, the proposal is said
to be accepted and a proposal, when accepted, becomes a promise3.

An offer is an expression of compliance to contract on specified terms made with the intention
that it is to become necessary as soon as it is accepted by the person to whom it is addressed. An
offer can also be defined as an expression of hospitality to enter into a contract on definite terms,
as soon as these terms are accepted. In other words, an offer is a proposal by one party to another
to enter into a legally binding agreement with him.

1
Law Library - American Law and Legal Information. 8 Apr. 2009.
2
Edwin Peal; Law of Contract in East Africa, 11th Edition (2003) page 30
3
Law of Contract Act [Cap 345, R.E 2002] section 2(1)(b)
The person making the offer is called the offeror and the person to whom the offer is made is
called the offer4.

When one person signifies to another his willingness to do or to abstain from doing anything
with a view of obtaining the assent of that other to such act or abstinence, he is said to make a
proposal5.

Acceptance typically can come in one of three types6:

1. Express: A direct and positive outward manifestation of the contract, such as -I accept your
offer.

2. Implied: The acts of the people show that the offer has been accepted, such as when both
parties to a contract begin to perform the terms of the contract.

3. Conditional: Acceptance is conditional on the incident of something, such as, ―I accept your
offer so long as you trim my tree in the next two days.‖ by its terms; a conditional acceptance is a
counter-offer.

Who CAN ACCEPT?

 An offer can be accepted only by the person or persons for whom the offer is expected.
 An offer made to a singular person can only be accepted by him because he is the only
person intended to accept.
 An offer given to a class of persons can be accepted by any member of that class.
 An-offer made to the world at large can be accepted by any person whatsoever7.

4
Edwin Peal; Law of Contract in East Africa, 11th Edition (2003) page 20

5
Law of Contract Act [Cap 345, R.E. 2002] section 2(1)(a)

6
https://www.scribd.com/document/192394164/48MISC2013LAW0103093842?
fbclid=IwAR32sFrFMNPy4HCyx6xruDOAs_gCuxTWQcdpkYVj7bj778oSLN5SDyqdQqc

7
AIR(1966)MAD 13
 Example:

Boulton v. Jones8.

The facts of this case were as follows: B, who was a manager with X, purchased his
business. J, to whom, X owed a debt, placed an order with X for the supply of certain goods.
B supplied the goods even though the order was not addressed to him. J refused to pay B for
the goods because he, by entering into a contract with X, intended to set-off his debt against
X.

Held: The offer was made to X and it was not in the power of B to have accepted the same.
In the case of a general offer, it can be accepted by anyone by complying with the terms of
the offer9.

General Rules as to Communication of Acceptance10:

1. In case of acceptance by post11:

Where the acceptance is given by post, the message of acceptance is absolutely against of
proposer when the letter of acceptance is posted. Thus, mere posting of the letter of
acceptance is sufficient to conclude a contract. However, the letter must be properly
addressed and stamped.

2. Postponed or no delivery of letter12:

Where the letter of acceptance is posted by the acceptor but it never reaches the offeror, or it
is delayed in transit, it will not affect the validity of acceptance. The offered is bound by the
acceptance.

8
20 Boultan vs. Jones 857) 2 H and N 564, [1857] EngR 935, (1857) 157 ER 232
9
https://www.scribd.com/document/402060829/CONTRACT-1-FINAL-docx

10
Economic analysis of the law of contract by Posner and Eric Page 2
11
https://www.scribd.com/document/402060829/CONTRACT-1-FINAL-docx
12
https://www.scribd.com/document/402060829/CONTRACT-1-FINAL-docx
 3. Acceptance by telephones telex or tax13:

If the communication of an acceptance is made by telephone, teleprompter, telex, fax

machines, etc., it completes when the acceptance is received by the offeror. The contract is
concluded as soon as the offeror receives not hears the acceptance.

4. The place of Contract14:

In case of acceptance by the post, the place where the letter is posted is the place of contract.
Where the acceptance is given by instantaneous means of communication (telephone, fax,
teleprompter, telex etc.), the contract is made at the place where the acceptance.

5. The time of Contract15:

In case of acceptance by post, the time of posting the letter of acceptance to the time of
contract. But in case of acceptance by instantaneous means of communication, the time of
the contract is the time when the offeror gets the communication, the time of the contract is
the time when offeror gets the communication of acceptance.

6. Communication of acceptance in case of an agent16:

Where the offer has been made through an agent, the communication of acceptance is
completed when the acceptance is given either to the agent or to the principal. In such a case,
if the agent fails to convey the acceptance received from offered, still the principal is bound
by the acceptance.

Legal Rules regarding valid acceptance:

1. Acceptance must be absolute and unqualified 

13
https://www.scribd.com/document/402060829/CONTRACT-1-FINAL-docx
14
https://www.scribd.com/document/402060829/CONTRACT-1-FINAL-docx
15
https://www.scribd.com/document/402060829/CONTRACT-1-FINAL-docx
16
https://www.scribd.com/document/402060829/CONTRACT-1-FINAL-docx
acceptance or conditional acceptance is no acceptance at all. There should be 100% acceptance
of the terms of the offer17. The acceptance must match with the offer. It should be a mirror image
of the offer. An acceptance with a variation is no acceptance but is a mere counter-proposal
which the original offeror may accept or not.

Example X offered to sell his bike to Y for BDT 5, 00,000 .Y accepted the offer and enclosed the
offer a cheese of BDT 80,000 only and also added that x has to buy his car in 1000000 tk. Held
there was no acceptance.

2. Acceptance must be given by the person to whom the offer is made:

In the case of a specific offer, it can be accepted by that person to whom it is made. In the case of
a general offer, it can be accepted by anyone by complying with the terms of the offer. 

Example A sold his SHOP to F without disclosing the fact to his customer. On the other hand, C
who had a running account with A sent an order for the supply of goods. F wants C to pay his
previous payment. But, C refused to pay the price. It is because that there is no contract between
F and C. C never made any offer to F and such C is not liable to pay the price18.

3. Acceptance may be expressed or given by the conduct

Acceptance may be expressed in words, spoken or written or it may be implied by conduct. For a
proposal to become a contract, the acceptance of such a proposal must be communicated to the
promisor.

Example : when A offered to supply B with 10 skincare products, B agreed to all the terms of
the proposal. He wrote a letter accepting the offer but forgets to post the letter. So since the
acceptance is not communicated, it is not valid19.

17
Indian Contract Act 1872: Part I https://www.toppr.com/guides/business-laws/indian-contract-act-1872-part-
i/acceptance/#:~:text=3%5D%20Acceptance%20must%20be%20communicated,specific%20form%20has%20been
%20prescribed.

18
https://www.toppr.com/guides/business-laws/indian-contract-act-1872-part-i/acceptance/#:~:text=3%5D
%20Acceptance%20must%20be%20communicated,specific%20form%20has%20been%20prescribed.

19
https://www.shareyouressays.com/knowledge/12-main-essentials-of-a-valid-acceptance-explained/94761
4. Acceptance must be exposed in some usual or equitable manner:

Acceptance of the offer must be in the prescribed manner that is demanded by the offeror. If no
such manner is prescribed, it must be in a reasonable manner that would be employed in the
normal course of business.

X offered through a letter, to sell his car to Y for BDT 550,000. He also wrote that it should be
accepted by letter only. Y instead of writing a letter, sent his authorized agent to X conveying the
message that he has accepted the offer. Y’s acceptance is not in the prescribed manner. X may
reject it within a reasonable time.

5. The acceptance must be given before the failure of offer 

A valid contract can arise only when the acceptance is given before the offer has elapsed or
withdrawn. An acceptance which is made after the withdrawal of the offer is invalid and does not
create any legal relationship.

Example: X offered, by a letter, to sell his horse to Y for ` 2500. Subsequently, X withdrew his
offer by a telegram which was also received by Y. After the receipt of this telegram. Y accepted
the offer by a letter and posted the same. In this case, the acceptance is invalid as it was made
after the effective withdrawal of the offer20.

6. The acceptance must be communicated

 It is an important and essential element of a valid acceptance. The definition of acceptance as
given in Sec. 2(b) emphasizes this requirement. According to this, the consent to the offer should
be signified (i.e. indicated or declared). In other words, the acceptance is completed only when it

20
https://commerceiets.com/valid-essentials-of-acceptance/
has been communicated to the offeror. It may be noted that until the acceptance is
communicated, it does not create any legal relations. 

Example: X offers to buy Y’s plot of land for ` 10 lakhs. Y discusses the proposal with Z his own
lawyer and agrees to sell the plot for ` 10 lakh. But Y does not communicate the acceptance to X.
In this case, no contract comes into existence between X and Y. Thus, a mere mental
determination to accept is not accepted unless it is accompanied by an external indication. The
requirement is that there should be some external manifestation of acceptance21

7. The acceptance cannot be presumed from silence :

 Sometimes, the acceptor does not convey his decision to the offeror/and keeps silent. In such a
case, his silence does not amount to acceptance. Similarly, the offeror does not have the legal
rights to say that if no answer is received within a certain time, the offer shall be deemed to have
been accepted. He (the offeror) cannot impose a condition that offeree silence will be regarded as
equivalent to acceptance. [Felthouse Vs. Bindley (1863) 7 LT 835].

 Example: X offered his car to Y for ` 95,000, and wrote that if he did not hear from him (Y)
within a week, he would assume that he has accepted an offer. No reply was given by Y. In this
case, no valid contract is concluded between X and Y.

8.  The acceptance may be express or implied 

 An acceptance, which is expressed by words written or spoken, is called an express acceptance.
[Sec 9] Example: X wrote to Y in a letter, “I want to sell my black horse for ` 12,000".Y replied
by a letter “I am ready and willing to buy your black horse for ` 12,000". Here B’s acceptance is
express acceptance as it is made in writing. Acceptance is implied when it is inferred from the
conduct of the parties.

9.   The acceptance must be in the prescribed manner:

21
https://www.lawteacher.net/free-law-essays/contract-law/acceptance-must-be-communicated-contract-law-
 It is the legal rule of the acceptance that it must be accepted in the prescribed manner. If the
offer is not accepted in the prescribed manner, then the offeror may reject the acceptance within
a reasonable time. It may, however, be noted that, if the offeror does not reject the acceptance
within a reasonable time then he becomes bound by acceptance. [Sec. 7(2)] 

Example: X offered through a letter, to sell his car to Y for ` 2, 70,000. He also wrote that it
should be accepted by letter only. Y instead of writing a letter, sent his authorised agent to X
conveying the message that he has accepted the offer. Y’s acceptance is not in the prescribed
manner. X may reject it within a reasonable time22.

10. The acceptance must be communicated to the offeror himself 

 A valid contract arises only if the acceptance is communicated to the offeror himself. If
acceptance is communicated to the person, other than the offeror, it will not create any legal
relationship. In fact, such communication is no communication at all23

Example: X offered to purchase Y’s horse and wrote a letter saying, “If I hear no more about the
horse24. I shall consider the horse mine at £35". To this letter, no reply was sent, but Y instructed
Z an auctioneer, not to sell the horse as it was already sold to X. By mistake, Z put up the horse
for auction and sold it. X filed a suit against Z on the ground that under the contract the horse
had become his property and Z is liable for conversion of his property. But his action failed. In
this case, X in his own mind accepted the offer. But he had not communicated his acceptance to
Y. [Felthouse Vs. Bindley (1863) 7 LT 835] However, if the offer is made by an agent on behalf
of his principal, then the acceptance may be communicated, either to the principal or his agent.

What is essential for a valid acceptance25 :

22
https://advocatespedia.com/ESSENTIALS_OF_A_VALID_ACCEPTANCE
23
https://www.shareyouressays.com/knowledge/12-important-rules-relating-to-acceptance-of-a-contract-in-
india/94734#:~:text=Sometimes%2C%20the%20acceptor%20does%20not,deemed%20to%20have%20been
%20accepted.
24
Scribd will begin operating the SlideShare business on September 24, 2020

25
https://www.preservearticles.com/education/6-essential-conditions-for-fulfilling-a-valid-acceptance/18181
6 essential valid acceptance, some conditions must be fulfilled. These are:

1. Acceptance must be absolute and unqualified:

2. Acceptance must be in the prescribed manner:

3. Acceptance must be communicated:

4. Only authorized personnel should communicate about the acceptance:

5. Acceptance should be made within the time prescribed or within an inexpensive time:

6. Acceptance should tend before the offer failures or is withdrawn:

what will account as non-valid acceptance by the law:

When an offeror makes an offer to an offeree and the offeree accepts improperly, that acceptance
becomes a non-valid acceptance.

Cause of a non- valid acceptance :

1. Not being a communicated time of acceptance

2. Silence can't be count of acceptance
3. Adding any weird condition through the acceptance
4. Did not ensure the time of acceptance
5. Oral acceptance is not an acceptance
6. Not follow the manner of acceptance
7. Not follow the 6 ethical rules of acceptance
8. By evocating the acceptance with another parties offer

Revocation of acceptance26:

26
THE INDIAN CONTRACT ACT,1872 Section 6(5)
Revocation of Acceptance: per Sec. 5, Associate in Nursing acceptance will be revoked at any
time before the declaration of acceptance is complete as into the acceptor and not later.
Maintaining our higher than example, B could revoke his acceptance at any time before the letter
of acceptance reaches A i.e., before fourteenth January. Communication of revocation of supply
and acceptance is additionally necessary, otherwise it'll not be effective.

1. by lapse of time: According to Section 6(2), a proposal may be revoked by the lapse of time
mentioned in such proposal for its acceptance and if no time is given then by the lapse of the
reasonable time.[1]

2. by non-fulfilment of condition precedent: When the acceptor fails to cover up the condition
precedent to the acceptance of the proposal is withdrawn. The proposal gets lapsed on such
failure.

3. by death or insanity: As per the Indian law, death or insanity of the proposer, Works as the
revocation of the proposal. This happens only when the death or Insanity comes to the
knowledge of the acceptor.

4. by counter offer: When a counteroffer is made by the offeree, the original offer comes to an
end.

5. by the non-acceptance of the offer according to the prescribed or usual Mode: If an offer is not
accepted according to the prescribed or usual mode then it stands to be revoked.

6. by subsequent illegality: An offer is withdrawn if it becomes illegal after it is made and before
it is accepted.

Communication of Revocation:

The communication of revocation is complete: (i) As against the one who makes it once it's place
into the course of transmission to the person to whom it's created therefore on be out of the
facility of the one who makes it. (ii) As against the person to whom it's created once it involves
his information. Example: A offers his automotive to B for Rs. 10,000 by a letter that he posts on
tenth March. B receives this letter on twelfth March. A revokes his supply by a wire that he
sends on tenth March. This wire reaches B on eleventh March. Communication of revocation as
against A is complete once he sent the wire i.e. on tenth March. Communication of revocation as
against B is complete once it reached A i.e. on eleventh March.

Mental Acceptance

What is A mere mental acceptance?

A Mental Acceptance: Mental Acceptance is an agreement which is un-communicated. That means the

acceptance is not expressed in words or writing and cannot also be implied from the control of the
acceptor27.

Example, Person Q writes to person S,”I want to buy your car for 85000000 TK”. Person S on
the other hand sees this and is mentally prepared to sell the car to person Q, but does not convey
his acceptance to person Q. So here person S mentally accepted the offer.

A Mental Acceptance is no Acceptance: Mental acceptance or quiet assent, not evidenced by

words or conduct does not amount to a valid acceptance, and this is so even where the offeror
has said that such a mode of acceptance will suffice 28. Acceptance must be communicated to the
offeror otherwise it is no effect. Thus if an oral acceptance is spoken into a telephone after the
telephone has gone dead, there is in effect no acceptance29. This rule is based on the theory of
consensus ad idem or of the identity of minds. Unless the acceptance of the offer comes to the
knowledge of the offeror, there is no identity of mind and therefore is no contract.

a mere mental acceptance which is not expressed in words or in writings is not recognized as
acceptance from the legal standpoint. Acceptance must be something more than mere mental
acceptance30. In other words, there must only be a desire to accept but the desire must be
expressed in words oral or written .like a proposal needs to be communicated, its acceptance also
needs to be followed up and communicated to the person making the proposal 31. Just as it is
27
https://www.scribd.com/document/172733384/Law-Assig-Final-2013

28
https://www.shareyouressays.com/essays/seven-important-legal-rules-regarding-to-a-valid-acceptance/92108

29
https://mercantilelaws.blogspot.com/2012/05/legal-rules-regarding-valid-acceptance.html

30
https://www.scribd.com/document/172733384/Law-Assig-Final-2013
31
https://www.scribd.com/document/172733384/Law-Assig-Final-2013
essential that a proposal or offer is communicated to the person for whom it is meant, it is
equally essential that is communicated to the person making the proposal. So it is said, “A mere
mental acceptance not evidenced by words or conduct is in the eye of law no acceptance32.

Officials explaining mere mental acceptance:

A mere mental acceptance can also mean silence as acceptance. Muteness usually is not
considered as an acceptance even if the offeror states that it is. This rule is intended to protect
offerees from being legally bound to offers because they declined to answer. The offeree must
say or do something to accept 33. Silence though golden is not acceptance. 21 (1886) L.R. 1 Ex.
109 22 (1916)30 Mad. 509 10 Silence by the offeree never amount to acceptance, even if the
offeror state in her offer that failure to reply will be considered acceptance. Silence may indicate
that the offer was not received or that the offered gave no thought to acceptance or even to
replying34.

Hypothetical illustrations35:

 ‘H’ may write a letter to ‘L’ offering to sell a certain rare book for Tsh.980, adding that unless
he hears from ‘L’ within the next ten days, he will conclude that ‘L’ has accepted the offer. If ‘L’
fails to reply, there is still no contract because an offeror’s assumption is that the offeree’s
silence may be interpreted as an indication of acceptance and this cannot be reasonable36.

32
https://quizlet.com/11210347/business-law-ch-11-unit-2-flash-cards/

33
https://quizlet.com/11210347/business-law-ch-11-unit-2-flash-cards/

34
https://www.scribd.com/doc/175811475/Business-Law-Acceptance-Offer

35

https://gladmainnew.morningstar.com/webhelp/tools/Hypotheticals/Working_with_Hypothetical_Illustrations.ht
m

36
https://gladmainnew.morningstar.com/webhelp/tools/Hypotheticals/Working_with_Hypothetical_Illustrations.h
tm
 ‘S’ telephones ‘P’ and leaves a message on his answering machine. “I’ll pay Tsh.7000 for
your textbook from last semester. I’m desperate to get a copy, so I will assume you agree unless I
hear by 6:00 tonight”. ‘S’ hears nothing by the deadline and assumes she has a deal. She is
mistaken. ‘P’ neither said nor did anything to indicate he accepted. Nevertheless, silence does
constitute to an acceptance in the following situations:  The offeree has indicated that silence
means assent. For example “If you don’t hear from me by Sunday, ship the order”37.

 The offeree signed an agreement indicating continuing acceptance of delivery until further
notification. Book-of-the-month CD of the club members are examples of such acceptances. 
Prior dealings between the parties indicate that silence means acceptance. For example, A fish
wholesaler who delivers 30 pounds of fish to a restaurant each Friday for several years and is
paid for the fish can continue deliveries with the expectation of payment until notified otherwise
by the restaurant38.

 The offeree takes the benefit of goods or services provided by the offeror even though he or
she (a) has an opportunity to reject the goods or services but fail to do so and (b) know the
offeror expects to be compensated. For example, a homeowner who stands idly by and watches a
painter who she has not hired mistakenly paint her house owes the painter for the work39.

Mental Acceptance is no Acceptance40: 

Mental acceptance or besides consent, not evidenced by words or conduct does not amount to a
valid acceptance41, and this is so even where the offeror has said that such a mode of acceptance
will suffice42. Acceptance must be communicated to the offeror otherwise it is no effect. Thus if
an oral acceptance is spoken into a telephone after the telephone has gone dead, there is in effect

37
https://www.amazon.com/gp/help/customer/display.html?nodeId=201910120

38
https://www.coursehero.com/file/p4vb27/Unless-otherwise-stated-the-time-period-begins-to-run-when-the-
offer-is/

39
https://www.coursehero.com/file/p4vb27/Unless-otherwise-stated-the-time-period-begins-to-run-when-the-
offer-is/
40
https://www.scribd.com/document/172733384/Law-Assig-Final-2013

41
https://www.scribd.com/document/172733384/Law-Assig-Final-2013

42
https://www.scribd.com/document/172733384/Law-Assig-Final-2013
no acceptance43. This rule is based on the theory of consensus ad idem or of the identity of
minds. Unless the acceptance of the offer comes to the knowledge of the offeror, there is no
identity of mind and therefore is no contract.

The mere mental acceptance which is not shown in words or in writings is not known as
acceptance from the legal viewpoint. Acceptance must be something more than mere mental
acceptance44. In other words, there must only be a desire to accept but the desire must be
expressed in words oral or written .like a proposal needs to be communicated, its acceptance also
needs to be followed up and communicated to the person making the proposal 45. Just as it is
essential that a proposal or offer is communicated to the person for whom it is meant, it is
equally essential that is communicated to the person making the proposal. So it is said, “A mere
mental acceptance not evidenced by words or conduct is in the eye of law no acceptance46.  

43
https://www.shareyouressays.com/essays/seven-important-legal-rules-regarding-to-a-valid-acceptance/92108

44
https://www.shareyouressays.com/essays/seven-important-legal-rules-regarding-to-a-valid-acceptance/92108

45
https://mercantilelaws.blogspot.com/2012/05/legal-rules-regarding-valid-acceptance.html

46
https://mercantilelaws.blogspot.com/2012/05/legal-rules-regarding-valid-acceptance.html
47

47