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Acceptance in contract law: A textbook defines acceptance as a final and unqualified expression of assent to the terms of an offer. 1 Academic commentary adds that conduct alone can amount to acceptance, provided it is referable to the offer. 2
In statute and case law: The Australian Consumer Law prohibits misleading or deceptive conduct in trade or commerce. 3 And in the leading case of Carlill, the court inferred acceptance from the plaintiff's use of the smoke ball — an offer made to the world. 4
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Acceptance in contract law: A textbook defines acceptance as a final and unqualified expression of assent to the terms of an offer. 1 Academic commentary adds that conduct alone can amount to acceptance, provided it is referable to the offer. 2
In statute and case law: The Australian Consumer Law prohibits misleading or deceptive conduct in trade or commerce. 3 And in the leading case of Carlill, the court inferred acceptance from the plaintiff's use of the smoke ball — an offer made to the world. 4
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Compare the approaches to acceptance in Carlill and Brogden.
In short: Acceptance can be inferred from conduct in both Carlill and Brogden. The cases differ in setup — unilateral offer to the world vs. bilateral negotiation — but they reach the same principle: substance over form.
Carlill — unilateral acceptance by performance: The Court of Appeal held that the plaintiff’s use of the smoke ball was acceptance. No notification was required because the offer was made to the world and contemplated performance as the mode of acceptance.
The £1,000 deposit: The advertised deposit with the bank rebutted any suggestion of an invitation to treat. It signalled the seriousness of the promise and the intention to be bound on performance.
Brogden — bilateral acceptance by conduct: The House of Lords inferred acceptance from sustained performance. Orders placed and fulfilled in line with the draft’s terms manifested an intention to be bound, even though no copy of the agreement was ever signed.
The shared principle: Both cases ask the reader to look at what the parties did, not what they said. Acceptance is a question of substance.
Where they diverge: Carlill is the textbook unilateral case. Brogden is the textbook bilateral case. The kind of conduct that counts as acceptance differs accordingly.
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