In this post, I will discuss whether or not a contract can be confirmed by a simple hand gesture or even just a head nod. Can these universal forms of communication be used to confirm a contract?
The question came to my head whilst staying in the Arcanus Hotel Sorgun in Turkey. I was waiting in the elevator for the doors to close, at which point a man walked towards the doors. The elevator was relatively full, and it would have been a tight fit for the man getting into the elevator. Then, with a singular head nod and a thumbs up, it was understood by everyone in the elevator, most of whom did not speak the same language, that the man was happy for the doors to close and the elevator to go up without him.
This left me thinking about how such gestures are applied legally. Can they make a contract?
In my first approach to the question, I began to think back to what a contract is and the requirements for a contract:
A contract consists of an offer by one party and an acceptance by the other. Both the offer and the acceptance may be written, oral or implied, or a combination of these.
For a contract to be valid and legally binding (enforceable), there must be:
- Agreement;....
- Intention to create legal relations;....
- Consideration;....
- Competent parties;....
- Legal provisions;....
If either party breaks a valid contract they may be sued in court for damages caused by the breach.... (SOURCE: https://www.gov.uk/hmrc-internal-manuals/national-minimum-wage-manual/nmwm04040)
The important aspects of what is above are the requirements of offer and acceptance. These are written, oral, or implied. The one which is most important, is 'implied', what is implied acceptance? Can a head nod or a hand gesture be 'implied' acceptance?
What is implied acceptance?
Implied acceptance is when an individual does not explicitly accept a contract in writing or verbally (i.e., 'I accept'). They, rather accept the contract through silence, conduct, or words.
Examples of Implied acceptance:
1. Performing the contract: If a supplier delivers goods to a buyer and the buyer accepts the delivery and uses the product. That conduct implies acceptance.
2. Silence + Conduct: If someone continues to receive a subscription knowing the terms, this is seen as implied acceptance. However, Silence alone usually does not count as acceptance, unless (1) the parties already have a relationship where silence signals agreement, as exemplified above, or (2) the offeree’s conduct makes it unfair to deny acceptance.
Courts also have to consider whether a reasonable person would interpret the offeree's behaviours as implying acceptance.
Can a head nod or a hand gesture be 'implied' acceptance?
A head nod or gesture can be seen as implied acceptance. So in some circumstances, it can be seen as acceptance of a contract.
The situations in which it is not enough for a contract:
1. The gesture must be unambiguous: If the nod or body language could be interpreted in different ways, it’s difficult and risky to rely on it as acceptance.
2. Courts apply a reasonable person test: Would a reasonable person in the situation believe the nod meant “I agree to these terms”? This is important for the court to determine whether the contract is accepted. If a reasonable person would not see it as acceptance, it cannot be seen as acceptance.
3. For important or high-value contracts: The law requires that for important contracts that it be more definitive. Therefore, most commercial contracts would not be accepted with a head nod and would not be legally binding. (e.g., Retail/ Property contract)
Conclusion:
Yes, a head nod can be seen as enough to be taken as an implied acceptance of a contract. This, however, has conditions as seen above. The acceptance of the contract cannot be for a high-value contract, as this requires a more definitive acceptance. However, if a court deems that a reasonable person would have seen the gesture as acceptance of the contract, then the contract is valid.
Add comment
Comments