ABSTRACT

Where T has communicated his assent, by words or conduct,90 to the term in the contract between A and B which confers a benefit upon him, it will not be possible for the terms of the original contract to be varied. But it is important that T’s assent is communicated to the promisor rather than the promisee.91 For these purposes, the ‘postal rule’ applicable to communication of acceptance of an offer does not apply with the result that the assent has to be received by the promisor.92 Difficulties may arise, in this context, where T has ‘sent’ notification of his assent in the form of a letter by post or where he has sent a message by facsimile or email and the message has arrived, but has not been read by the addressee. Logic would seem to suggest that in such circumstances, the courts are likely to apply a fault principle similar to that used in relation to rules on offer and acceptance. Thus, if the message is sent at a time when it would be expected that no one would be present to receive it, the communication would not become effective until the promisor’s business has been open and operative for a reasonable time.93