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Contract Litigation: Silence as Acceptance

A contract is only enforceable if there is mutual assent and consideration. Meco Systems v. Dancing Bear Entm’t, 42 S.W.3d 794, 803 (Mo. Ct. App. 2001). With respect to mutual assent, courts look to the “objective manifestations of intent” to determine whether there was a “meeting of the minds.” Don King Equipment Co. v. Double D Tractor Parts, Inc., 115 S.W. 3d, 363, 365 (Mo. Ct. App. 2003). A meeting of the minds occurs when there is a definite offer and an unequivocal acceptance. Cottonseed Delinting Corporation v. Roberts Brothers, Inc., 218 S.W.2d 592, 594 (Mo. 1949). For an acceptance to be valid, it must be positive and unambiguous. As a general rule, silence cannot be translated into acceptance. There are, though, at least four exceptions to this general rule in Missouri that contractual offers must be affirmatively accepted by words or conduct.

First, when the person receiving the offer, with a reasonable opportunity to reject the goods or services, takes the benefit from them under circumstances indicating acceptance; second, when the offeror has stated that he/she will interpret silence or inaction as acceptance; third, when prior dealings indicate to the offeror that the person receiving the offer has accepted; and, fourth, when the person receiving the offer takes or retains possession of the offered property. Kunzie v. Jack-In-The Box, Inc., 330 S.W.3d 476, n.10 (Mo. Ct. App. 2010).

This comes up more frequently than one may think in breach of contract litigation and other business disputes. Often times, particularly when there is extensive negotiations, there will be a disconnect between what one person thinks of the terms and conditions of the agreement versus what the other party may feel is the contract. For this reason, it is generally advisable to use caution when conversing about contracts an discussing their terms. A court could, using the foregoing legal principles, interpret your actions to be an acceptance of a contract. 

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