Similarly if there is uncertainty only because some

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Similarly, if there is uncertainty only because some minor term was omitted the courts will, if possible, imply into the agreement what they feel the parties must have intended so that the contract, thus modified, will be workable. The same approach applies if meaningless clauses were included in the contract (giving rise to some question as to what was actually intended). In such cases the courts can sever the meaningless clauses (delete them from the contract), thereby giving the contract a clear meaning and then enforcing it in its severed form. The means of acceptance Like offers, acceptances must generally be communicated to be effective and the communication may have to be in the specific form stipulated by the offeror. Offerors can require that their offers be accepted in a particular way and, if they do, failure to use that way can invalidate the ‘acceptance’. For example, if I require your acceptance ‘by return of post’ and you wait for a week before telephoning me, your ‘acceptance’ would not be valid and I could refuse to deal with you. This rule is not absolute and in practice it is tempered by the realities of commerce. Consequently, an offeree can usually use alternative means of communication provided those means are no less beneficial to the offeror than the manner that he or she specified. Therefore, if the offeree communicates acceptance in a speedier manner (if speed was what was required), that speedier means will usually suffice to bring about a valid and binding contract — even though the acceptance was not communicated in precisely the manner that the offeror had requested. So, using our earlier example, if I were to require your acceptance ‘by return of post’ and you were to fax me immediately upon receiving my offer, that would probably be a good acceptance and I would probably be contractually bound to go through with the deal. It is unlikely that the courts would release me from my obligations just because you accepted by fax (a speedier and still written form of acceptance) rather than by letter. Acceptance by conduct The requirement for communication of acceptance stems from the offeror’s need to know whether his or her offer has been accepted. Normally, actual communication is required but a contract can also arise if the parties’ subsequent actions clearly indicate their common belief that acceptance has occurred.
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© Stephen Graw 2012 14 For example, in Empirnall Holdings v Machon Paull (1988) 14 NSWLR 523, Empirnall had engaged Machon Paull to do some construction work for it. Machon Paull had agreed but only on the terms of a written contract that it sent Empirnall for signature. The written document — which was effectively the offer — was never signed or returned (because the controller of Empirnall ‘does not sign contracts’) but the work was done and the parties conducted themselves as if their relationship was governed by its terms. In subsequent litigation a dispute arose over whether the contract between the parties was an open oral contract or one which was formally governed by the terms of the unsigned document. The
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