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ARTICLE · 06 OCTOBER 2022

Conduct affirming the existence of a contract

Rostron Carlyle Rojas
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The silence of an offeree, together with other circumstances of the case, may indicate that he has accepted the offer.

AustraliaCorporate/Commercial Law
Michael Sing
Michael Sing
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WHEN CAN A CONTRACT BE FORMED BASED UPON THE CONDUCT OF A PARTY?

It frequently happens that parties fall into disagreement about the terms of a contract where there are multiple offers and counter-offers and there is no formal or written acceptance of terms.

In Forte Sydney Construction Pty Ltd v N Moit & Sons (NSW) Pty Ltd [2022] NSWCA 186, a dispute arose in the context of building and construction earthworks as to which of 2 contracts as to work and payment should apply, and the existence of a contract and the amount of money owed for works performed under it.

Central to this dispute was the question of whether an offer made to perform works under a revised tender submission was accepted by the conduct of a party in performing those certain works and if so, the rates of payment for those works.

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