Exam Tip: When analyzing a problem question involving silence, always check if there is a "usage" or "business dealing" that justifies treating silence as consent. Otherwise, the default rule in both systems is that silence is not acceptance.
Timing and Communication: The Postal Rule vs. Réception
One of the most significant technical differences between the two systems lies in when a contract is deemed to exist when parties are communicating at a distance.
Common Law and the Postal Rule
The general rule in Common Law is that acceptance has no effect until it is actually communicated to the offeror. However, to manage the risks of delays in historical communication, the "Postal Rule" was developed. Established in Adams v Lindsell (1818), this rule dictates that acceptance is effective the moment a reply is posted, rather than when it is received.
French Law and the Théorie de la Réception
French law has moved toward a more modern standard. While there was historically a debate between the théorie de l'émission (acceptance is effective when sent) and the théorie de la réception (acceptance is effective when received), the current law is clear. Under Article 1121 of the Civil Code, a contract is concluded as soon as the acceptance reaches the offeror.
This "theory of reception" means the contract is deemed to be concluded at the place where the acceptance arrived.
The French Reform of 2016
The landscape of French contract law underwent a massive transformation via the Ordonnance of 10 February 2016, which came into force on 1 October 2016. This reform codified much of the existing case law and clarified the distinction between an offer and an "invitation to negotiate" (invitation à entrer en négociation).
Under the new Article 1114, an offer must contain the "essential elements" of the contract and express the will of the author to be bound. If these elements are missing, it is merely an invitation to negotiate.
Intention to Create Legal Relations
Even if an offer and acceptance are present, a contract may fail if the parties did not intend to be legally bound.
Common Law Presumptions
In English law, the "intention to create legal relations" is a distinct requirement. The courts use objective tests to determine this: would a reasonable person, in the position of the parties, believe they intended to create a contract?.
- Social and Domestic Agreements: There is a strong presumption that agreements made in social or domestic settings (e.g., between spouses or friends) are not intended to be legally binding.
- Commercial Agreements: Conversely, in a commercial context, there is a powerful presumption that the parties do intend to create legal relations.
The French Approach
French law does not have a standalone "intention" requirement in the same way, but the concept is embedded within the definition of an offer. Article 1114 requires that an offer expresses "the will of its author to be bound in case of acceptance". Like English law, French law recognizes that everyday social arrangements or family helps are generally outside the scope of binding legal contracts.
Summary Table: Comparative Overview
| Feature | Common Law (English) | French Law (Post-2016) |
|---|
| Core Requirement | Offer, Acceptance, Consideration, Intention | Meeting of offer and acceptance |
| Mirror Rule | Required; otherwise a counter-offer | Required (Art 1118); otherwise a new offer |
| Silence | Generally not acceptance | Generally not acceptance (Art 1120) |
| Communication | Postal Rule (effective upon sending) | Théorie de la réception (effective upon arrival) |
| Commercial Intent | Presumed | Expressed via "will to be bound" |
Final Thought: While the mechanics often look similar, the underlying philosophies differ. English law is often viewed as "market-individualistic," focusing on the exchange of promises, whereas the French approach is described as more "solidarist" and "welfarist," focusing on the accord de volontés (agreement of wills).
