Anson’s law of Contract

In Anson’s law of Contract the law is summarised thus:

“Acceptance means in general communicated acceptance. * * * * It must be something more than a mere mental assent. In an old case it was argued that where the produce of a field was offered to a man at a certain price if he was pleased with it on inspection, the property passed when he had seen and approved of the subject of the sale, But Brian J., said:

‘It seems to me the plea is not good without showing that he had certified the other of his pleasure; for it is trite learning that the thought of man is not triable, for the devil himself knows not the thought of man; but if you had agreed that if the bargain pleaded then you should have signified it to such an one, then I grant you need not have done more, for it is matter’ of fact.’

This dictum was quoted with approval by Lord Blackburn in the House of Lords in support of the rule that a contract is formed when the acceptor has done something to signify his intention to accept, not when he has made up his mind to do so, in Brogden v. Metro By. Co., (1877) 2 A. C. 666 at p. 692.”

Mere tacit formation of intention cannot constitute an acceptance of an offer

There cannot be any doubt that a mere tacit formation of intention cannot constitute an acceptance of an offer. Something more is required. There must be some overt act or speech from which that intention can be manifest. Generally communication to the offerer is necessary. “But it is also not in doubt that in certain cases there can be acceptance though it has not been brought to the knowledge of the offerer.

There is a distinction between an offer and acceptance. An offer is not made until it is brought to the knowledge of the offeree. In the case of acceptance, however, if there is an express or implied intimation from the offerer that a particular mode of acceptance will suffice, some overt act must be done or words spoken by the offeree which are evidence of an intention to accept, and which conform to the mode of acceptance indicated by the’ offerer (Anson).

Garlill v. Carbolic Smoke Ball Co. Case

The law on the subject was thus stated by Bowon L. J., in the Garlill v. Carbolic Smoke Ball Co. Case, (1893) 1 Q. B. 256 at p. 269.-

“One cannot doubt that as an ordinary rule of law, an acceptance of an offer made ought to be notified to the person who makes the offer, in order that, the two minds may come together. Unless this is done the two minds may be apart, and there is not that consensus which is necessary according to the English Law-I say nothing about the laws of other countries-to make a contract.

But there is this clear gloss to be made upon that doctrine, that as notification of acceptance is required for the benefit of the person who makes the offer, the person who mikes the offer may dispense with notice to himself if he thinks it desirable to do so, and I suppose there can be no doubt that where a person in an offer made by him to another person, expressly or impliedly intimates a particular mode of acceptance as sufficient to make the bargain binding, it is only necessary for the other person to whom such offer is made to follow the indicated method of acceptance; and if the person making the offer, expressly or impliedly intimates in his offer that it will be sufficient to act on the proposal without communicating acceptance of it to himself, performance of the condition is a sufficient acceptance without notification.”

In the same case, Lindley L. J. said ‘{p. 262):

“Unquestionably, as a general proposition, when an offer is made, it is necessary in order to make a binding contract, not only that it should be accepted, but that the acceptance should be notified…..I apprehend that they are an exception to that rule, or, if not an exception, they are open to the observation that the notification of the acceptance need not precede the performance … If notice of acceptance is required-which I doubt very much, for I rather think the true view is that which was expressed and explained by Lord Blackburn in the case of Brogden v. Metropolitan By. Co,(1877) 2 A. C. 666-

if notice of acceptance is required, the person who mikes the offer gets the notice of acceptance contemporaneously with his notice of the performance of the condition. If he gets notice of the acceptance before his offer is revoked, that is principle, is all you want. I, however, think, that the true view, in a case of this kind, is that the person who makes the offer shews by his language and from the nature of the transaction that he does not expect and does not require notice of the acceptance apart from notice of the performance.”

Pollock’s Principles of Contract

The principle is stated thus in Pollock’s Principles of Contract (13th Edn.) by Winfield at p. 25:

“There is a material distinction, though it is not fully recognised in the language of our authorities, between the acceptance of an offer which asks for a promise, and an offer which asks for an act, on the condition of the offer becoming a promise.”


Hindustan Co-operative v. Shayam Sundar Das (1952)