Contract; formation; agreement; silence not equivalent to acceptance; acceptance by conduct.
Facts: Empirnall Holdings, a property developer, wanted Machon Paull to agree to do some building work but were reluctant to sign a formal contract. Machon Paull insisted that a formal contract be completed and sent a detailed contract to Empirnall requesting they sign it. Empirnall did nothing but Machon Paull nevertheless began work in accordance with the formal agreement and Empirnall made payment. When Empirnall fell into arrears with payments Machon Paull sued to enforce the terms of the written agreement (which remained unsigned).
Issue: Had Empirnall accepted the terms in the unsigned contract?
Decision: Empirnall had accepted the terms.
Reason: Although one party cannot normally impose terms on another by saying 'these are the terms unless you reject them', there may be acceptance by conduct in some circumstances. The ultimate test is whether a reasonable bystander would regard the conduct of the offeree as signalling acceptance of the offer. In the present case Empirnall, knowing the terms of the written offer, had taken the benefit of the offer, allowing the work to commence and making payments under the agreement. This conduct amounted to acceptance of the written terms.