When Does Silence Constitute Acceptance Under Syrian Law?
The General Rule and the Exception in Contract Formation
In daily and commercial relationships, one party often sends an offer or proposal to another and then receives no response.
This raises an important practical question:
Does silence mean acceptance?
The answer may seem simple, but it is not so under the law. The general rule is that a person is not deemed to have accepted merely because they did not object. However, the nature of certain transactions or a prior course of dealing between the parties may give silence a different legal meaning.
This highlights the importance of distinguishing between mere silence and silence accompanied by circumstances that make it an expression of acceptance.
The General Rule: Silence Does Not Mean Consent
The basic rule is that a person’s failure to respond is not, by itself, sufficient to establish that they accepted the offer addressed to them.
Acceptance presupposes an intention directed toward entering into a contract. As a general principle, one party may not impose an obligation on another merely by sending an offer and then treating the lack of a response as acceptance.
Accordingly, if a person sends another an offer containing new financial or contractual obligations, they generally cannot say:
“If you do not object, you have accepted.”
Silence alone does not ordinarily create an obligation.
Syrian legal scholarship distinguishes between an implied expression of intention and silence. Implied expression involves positive conduct from which intention may be inferred, whereas silence in itself is a passive position that does not necessarily signify acceptance.
But When Does Silence Become Acceptance?
The Syrian Civil Code establishes important exceptions to this rule.
Article 99 of the Syrian Civil Code provides that where the nature of the transaction, commercial custom, or other circumstances indicate that the offeror did not expect an express statement of acceptance, the contract may be regarded as concluded if the offer is not rejected within the appropriate time.
The provision also recognizes that failure to respond may constitute acceptance where there has been a prior course of dealing between the contracting parties and the offer relates to that dealing, or where the offer is made solely for the benefit of the person to whom it is addressed.
Thus, silence derives its legal significance not from silence itself, but from the circumstances surrounding it.
Prior Dealings Between the Parties
This is one of the most important practical situations, particularly in continuing commercial relationships.
Suppose that a company has, over a long period, regularly sent one of its suppliers orders according to a fixed procedure, and the supplier has fulfilled those orders in the usual manner without requiring a formal letter each time stating “we agree.”
If the company sends a new order within the same pattern of dealing and the supplier continues its usual conduct or does not reject the offer despite the established relationship between the parties, the prior dealings may become an important element in interpreting its position.
However, the existence of prior dealings does not mean that every subsequent silence automatically constitutes acceptance.
The new offer must be actually connected to the prior dealings, rather than imposing substantial new obligations that differ from the usual nature of the relationship.
For example, a practice of purchasing a particular quantity of goods should not, by itself, become a basis for assuming that the buyer accepted exceptional terms or new burdens that had not previously formed part of the dealings.
Commercial Custom and the Nature of the Transaction
Some transactions are especially affected by commercial custom or by the manner in which professionals deal with one another when determining the meaning of silence.
Silence is not examined in isolation. Instead, questions may include:
Is an express response normally required in this type of transaction?
Did the other party know, through prior dealings, that failure to object within a certain period carried a specific meaning?
Did the circumstances reasonably indicate that the offeror expected a rejection if the recipient did not agree, rather than an express acceptance if the recipient did agree?
The preparatory works relating to Article 99 explained that the provision was intended to give the judge a flexible standard based on the nature of the dealings, commercial custom, and the circumstances of the case, while distinguishing mere silence from silence accompanied by circumstances that give it significance as an expression of intention.
When the Offer Benefits the Other Party
The law also addresses situations in which the offer is made solely for the benefit of the person to whom it is addressed.
This means that, by its nature, the offer provides a benefit to the other party without imposing a counter-performance or a new burden on them.
In such a case, silence may carry a stronger indication of acceptance, depending on the nature of the act and the surrounding circumstances.
Nevertheless, this situation should not be applied broadly, because the general rule remains that a person should not be burdened with an obligation unless they have expressed their intention to assume it.
Silence Differs from Implied Acceptance
It is also important not to confuse two different situations:
Remaining completely silent and engaging in conduct that indicates acceptance.
If a supplier sends an offer to supply materials at a specified price, and the other party then transfers the agreed payment, begins receiving the goods, or starts performing the contract, the situation may not involve “silence” in the strict sense. It may instead involve positive conduct from which implied acceptance can be inferred.
This distinction is important before the courts because the assessment of positive conduct differs from attempting to infer a legal intention from a mere failure to respond.
What About Written Terms on an Invoice?
This is a particularly important issue in commercial practice.
The parties may agree on a transaction, after which one party sends an invoice containing additional terms that were not previously negotiated, such as a penalty clause, a jurisdiction clause, or a new obligation. The sender may later argue that the other party did not object to the invoice and therefore accepted its terms.
That conclusion is not automatic.
Notably, the preparatory works for the Civil Code specifically considered whether a buyer’s silence after receiving the goods should constitute acceptance of the terms stated in the invoice. The legislative discussion ultimately resulted in deleting an express application and leaving the assessment of such cases to their circumstances.
This has an important practical implication:
Receiving an invoice and failing to object to it should not always be understood as acceptance of every new term added to it.
The original agreement, the nature of the term, the prior dealings, commercial custom, and whether the other party knew of the term and acted on that basis must all be considered.
The Risk in the Phrase: “Failure to Respond Constitutes Acceptance”
A common mistake in commercial correspondence is for one party to send a letter stating:
“If you do not object within three days, this will constitute your acceptance of the above.”
This statement alone does not necessarily give its sender the power to create an obligation for the other party.
As a general principle, a person may not create acceptance for themselves simply by setting a deadline for the other party and then treating the absence of a response as agreement.
The result may differ if a prior agreement between the parties regulates this mechanism, or if their established dealings or commercial custom gives failure to object a specific meaning.
Once again, the source of acceptance is not merely the sender’s statement, but the legal relationship and the surrounding circumstances.
Practical Importance Before the Courts
In a dispute, the party relying on silence cannot simply say:
“I sent it to them and they did not object.”
The issue is more complex.
The history of the parties’ dealings, the nature of their prior correspondence, the applicable custom, the contents of the new offer, whether it repeats existing terms or creates new obligations, the length of the silence, and what either party did afterward should all be examined.
The true judicial question is not:
Did the other party remain silent?
It is instead:
Were the circumstances surrounding that silence sufficient for it to be understood as acceptance?
Baghdadi Law Perspective
Silence under Syrian law is not automatic consent, but it is not always without legal effect.
The general rule is that silence alone is insufficient to express intention. However, specific circumstances may give it the meaning of acceptance, particularly where there are prior dealings between the parties, a commercial custom, a special nature to the transaction, or where the offer is made for the benefit of the person to whom it is addressed.
Accordingly, silence should not be assessed solely by reference to the latest message, but through the legal relationship as a whole.
In commercial practice, the safest rule remains simple:
If the matter is important, do not leave your intention to silence.
A clearly written word today may prevent a lengthy dispute tomorrow.
Prepared by: Baghdadi Law | البغدادي للمحاماة
This article is for general legal awareness and does not constitute legal advice regarding a specific matter.