formalised contract, the court placing primary reliance on parties’ conduct. However, does it illustrate, perhaps even prove, the Atiyah thesis, or is it an unusual (if not wholly exceptional) case to be confined largely to its own facts? Certainly, it can be made to fit the conventional offer and acceptance model; Metropolitan’s sending of the draft amounting to an offer, Brogden’s ‘variations’ and return of the draft equalling a counter-offer and the placing of orders by Metropolitan (on the implicit basis of the varied draft) amounting to an acceptance of the counter-offer. On the other hand, in Trentham v Archital Luxfer, Steyn LJ firmly places the emphasis on the fact of performance and

doi:10.4324/9781843141518-33

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formalised contract, the court placing primary reliance on parties’ conduct. However, does it illustrate, perhaps even prove, the Atiyah thesis, or is it an unusual (if not wholly exceptional) case to be confined largely to its own facts? Certainly, it can be made to fit the conventional offer and acceptance model; Metropolitan’s sending of the draft amounting to an offer, Brogden’s ‘variations’ and return of the draft equalling a counter-offer and the placing of orders by Metropolitan (on the implicit basis of the varied draft) amounting to an acceptance of the counter-offer. On the other hand, in Trentham v Archital Luxfer, Steyn LJ firmly places the emphasis on the fact of performance and

ABSTRACT

What is clear from Lord Blackburn’s judgment is that some conduct or performance is required to conclude a contract, a merely passive assent will not suffice. As it is often put, silence is not acceptance. This is illustrated in Felthouse v Bindley.43 A and B, verbally agreed for the purchase of a horse by A from B. A few days afterwards, B wrote to A, saying that he had been informed that there was a misunderstanding as to the price, A having imagined that he had bought the horse for £30, B that he had sold it for 30 guineas. A thereupon wrote to B proposing to split the difference, adding ‘If I hear no more about him, I consider the horse is mine at £30 15 s’. To this, no reply was sent. No money was paid and the horse remained in B’s possession. Six weeks afterwards, the defendant, an auctioneer who was employed by B to sell his farming stock and who had been directed by B to reserve the horse in question as it had already been sold, mistakenly put it up with the rest of the livestock and sold it. After the sale, B wrote to A a letter which substantially amounted to an acknowledgment that the horse had been sold to him.