Felthouse v Bindley [1862] 11 CBNS 869

• After some negotiations, Plaintiff wrote a letter to X saying that he would pay a certain amount for X’s horse and that if he heard no more from X on the matter he would consider the horse to be his. X wrote to his auctioneer, telling him of the sale, but the auctioneer, Defendant, accidentally sold the horse.

• Plaintiff sued Defendant for contravening his property rights.

• CA held that the X’s silence was NOT an acceptance since Plaintiff had no right to impose a duty on X to accept the sale or to communicate further.

• X had to communicate his acceptance to Plaintiff in order to be valid and therefore there was no contract, since he had not done so.

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McKendrick: some say the decision is bad because X wanted the sale to go through and communicated this to Defendant. However even if an exception were created where the owner is happy for his silence to be taken as acceptance, there would still be problems of withdrawing acceptance since it isn’t clear when the acceptance has occurred + how long should the potential buyer wait before he can gain ownership + what if the owner’s rejection of the offer is delayed a long time and the potential buyer reasonably assumes that the silence was acceptance of the terms when in fact it was not: impractical