Does Silence Constitute Acceptance of a Contractual Offer?
I. Introduction
Consider the following scenario: a commercial enterprise transmits an offer of cooperation to a longstanding business partner. Days pass, then weeks—yet no response materializes. May the offeror reasonably presume that silence constitutes acceptance? Alternatively, suppose the counterparty responds equivocally, declining to articulate a definitive position. While intuition counsels caution, the governing legal principles in this domain yield conclusions that may prove surprising to the uninitiated practitioner.
The absence of response to a contractual offer represents one of the most prevalent sources of misunderstanding in commercial relationships. Entrepreneurs frequently labor under the erroneous assumption that a counterparty’s failure to decline necessarily implies consent. Yet the principles governing contract formation under the Polish legal system rest upon fundamentally different premises, and misapprehension of the legal significance of silence may engender protracted collection proceedings and substantial litigation costs.
This issue assumed particular salience in a matter adjudicated by the Warsaw Court of Appeals (Case No. I ACa 491/18), which traversed multiple appellate stages—including review by the Supreme Court—before arriving at a definitive resolution. The case presented a foundational question of contract law: under what circumstances may a party’s passivity be construed as a manifestation of contractual intent?
II. The General Principle: Silence Does Not Constitute Acceptance
Polish civil law rests upon an unambiguous doctrinal foundation: silence, standing alone, does not constitute a declaration of intent (oświadczenie woli). As the Warsaw Court of Appeals aptly observed in the aforementioned decision: “In the theory of civil law, it is accepted that silence signifies the absence of consent.”
The Katowice Court of Appeals articulated this principle with even greater precision (Case No. I ACa 1238/03): “The general rule provides that silence does not externalize intent, and a party’s passive conduct signifies non-acceptance of any terms whatsoever, unless specific statutory provisions associate the consequences of silence with an actual declaration of intent.”
This doctrine serves to protect the autonomy of participants in commercial transactions. Were the absence of response to an offer to constitute automatic acceptance, any person could be involuntarily bound by obligations they never intended to assume. Under such a regime, one need merely transmit an offer and await the passage of time—the addressee’s silence would render them a party to the contract.
III. The First Exception: Implied Acceptance Among Merchants Under Article 68² of the Civil Code
A. Statutory Framework
Every general principle admits of exceptions. Article 68² of the Polish Civil Code introduces a special rule applicable to professional commercial dealings: where an entrepreneur receives from a person with whom they maintain ongoing business relations (stałe stosunki gospodarcze) an offer to conclude a contract within the scope of their business activities, the failure to respond promptly shall be deemed acceptance of the offer.
This provision enables contract formation through silence, yet its application requires satisfaction of several cumulative conditions.
B. The Requirement of Entrepreneurial Status
The addressee of the offer must possess the status of an entrepreneur (przedsiębiorca). Notably, the professional status of the offeror remains immaterial to the application of this provision.
C. The Existence of Ongoing Business Relations
The parties must maintain ongoing business relations—a concept warranting careful examination. As the Katowice Court of Appeals explained (Case No. I ACa 1238/03): “One may speak of ongoing relations where the parties are bound by certain commercial agreements over an extended period (for example, cooperation agreements, franchising arrangements, and similar instruments), giving rise to continuous commercial cooperation between the parties. By contrast, incidental contracts of a given type, concluded between the parties from time to time, do not fall within the concept of ‘ongoing relations’ within the meaning of the applicable legal regulation and provide no basis for its application where they do not establish continuous commercial cooperation.”
The Szczecin Court of Appeals supplemented this interpretation with an important qualification (Case No. I ACa 319/14): “One may speak of the continuity of such relations where the parties are bound by certain commercial agreements over an extended period, the existence and repetition of which has permitted the development of specific practices.” Thus, the inquiry extends beyond mere durational persistence of the relationship to encompass the cultivation between the parties of established practices regarding tacit acceptance.
D. Correspondence Between Offer and Business Activities
The offer must pertain to activities actually conducted by the entrepreneur-addressee within the scope of their business operations.
E. Restrictive Interpretation
Legal scholarship advocates for a restrictive interpretation of this provision. As the Katowice Court of Appeals emphasized, such interpretation must be restrained “so as not to permit, through liberal application, the imposition of ‘unwanted’ contracts.” The underlying principle is that exceptional provisions ought not to be construed expansively.
F. Additional Limitations
Article 68² of the Civil Code possesses a dispositive character—parties may contractually exclude its operation. Moreover, the provision does not apply to electronic offers prior to their confirmation by the addressee.
IV. The Second Exception: Acceptance Through Performance Under Article 69 of the Civil Code
A. Doctrinal Foundation
Alongside Article 68², the Polish legal system provides a second mechanism for tacit contract formation. Article 69 of the Civil Code provides that where, according to established custom in the relevant dealings or according to the terms of the offer, communication of acceptance to the offeror is not required, the contract is concluded when the other party commences performance within an appropriate time.
B. Distinguishing Articles 68² and 69
The distinctions between these provisions carry significant practical implications.
Article 68² requires the existence of ongoing business relations and applies exclusively to entrepreneur-addressees. Article 69, by contrast, operates on the basis of the offer’s terms or established custom and extends to consumer transactions as well.
Under Article 68², the contract forms through the mere passage of time without response from the addressee. Article 69 requires affirmative conduct—commencement of performance, which may consist of dispatching goods, initiating production of ordered merchandise, or beginning to render services.
C. Practical Applications of Article 69
The particular significance of Article 69 manifests in three contexts.
First, an offeror may expressly stipulate in the offer that immediate performance is requested, thereby dispensing with the expectation of formal acceptance. This approach affords greater certainty than reliance upon the contested concept of “ongoing business relations” under Article 68².
Second, “custom” within the meaning of Article 69 encompasses both established practice between specific parties and conventions generally observed within a given industry. Transactions conducted through e-commerce platforms exemplify this phenomenon: commencement of order fulfillment frequently substitutes for formal acceptance.
Third, Article 69 introduces the concept of “appropriate time” for commencing performance. Where the offer does not specify a term, reference must be made to the parties’ prior dealings or industry conventions. In electronic commerce, characterized by transactional velocity, this typically necessitates prompt action.
It bears noting that Article 69—unlike Article 68²—has remained substantially unchanged since the Civil Code’s promulgation and successfully fulfills its function of facilitating commercial transactions without the interpretive controversies attending the concept of “ongoing business relations.”
V. The Warsaw Court of Appeals Decision: The Necessity of Mutual Assent
A. Factual Background
The Warsaw Court of Appeals decision (Case No. I ACa 491/18) provides an instructive illustration, albeit involving a configuration distinct from the classical offer under Article 66 of the Civil Code.
The plaintiff extended a loan to the defendant for the acquisition of residential property. The parties failed to establish either the term or manner of repayment. Subsequently, when relations between the parties deteriorated, the defendant unilaterally issued a declaration specifying repayment terms—monthly installments of 1,000 PLN. The plaintiff received the document but never expressly accepted the proposed terms. He did, however, commence accepting payments conforming to this schedule.
B. Judicial Analysis
The Regional Court initially concluded that the plaintiff’s silence, coupled with his acceptance of installment payments, constituted implied consent to the repayment terms. The Court of Appeals—upon remand following Supreme Court review—reached the opposite conclusion.
The court’s critical determination: “The declaration of June 19, 2013 constitutes a unilateral act, whereas a contract requires at minimum two corresponding declarations of intent. In this matter, the plaintiff’s declaration of intent expressing consent to the repayment terms offered by the defendant was absent.” The mere fact of accepting payments does not establish acceptance of a multi-year repayment horizon; consequently, no contract establishing repayment terms was effectively formed.
The court further emphasized that Article 68² was inapplicable to the dispute because “this is an exception to the general rule and pertains to entrepreneurs, and therefore not to the parties’ circumstances”—both plaintiff and defendant being natural persons not engaged in commercial activity.
The plaintiff ultimately exercised his statutory right to terminate the loan pursuant to Article 723 of the Civil Code and served a demand for payment of the entire outstanding amount.
VI. Doctrinal Framework: When Silence Constitutes Acceptance
Legal scholarship identifies three sources of interpretive rules permitting silence to be construed as a declaration of intent resulting in contract formation:
A. Statutory Provisions
The aforementioned Article 68² expressly invests passivity with the significance of offer acceptance. However, one must distinguish provisions that create a declaration of intent from those that merely impose a duty to respond (such as Article 736 concerning mandate contracts) or that associate certain legal consequences with passivity without characterizing it as a juridical act.
B. Contractual Agreement
Parties may agree in advance that failure to respond to specified proposals shall constitute acceptance. Such arrangements frequently appear within the context of ongoing commercial cooperation, where parties develop proprietary procedures for tendering and accepting orders.
An important caveat applies: the stipulation must derive from a prior agreement, not from the offeror’s unilateral declaration. A clause within an offer stating “failure to respond within seven days constitutes acceptance” is without legal effect.
C. Custom and Usage
Established practice between the parties or within a particular industry may invest silence with the significance of a declaration of intent. Article 69 provides the legal basis for such custom, expressly permitting contract formation through commencement of performance where custom so provides. As the Szczecin Court of Appeals observed (Case No. I ACa 319/14), one may speak of ongoing relations where extended cooperation has permitted the development of specific practices regarding tacit acceptance.
VII. The Effect of Equivocal Responses
A. The Problem Defined
A particularly intriguing question concerns equivocal responses. Suppose a counterparty responds enigmatically: “we shall consider the matter” or “we shall revert with a response.” Does such a reaction interrupt the running of the period for tacit acceptance? Or does the risk of implied contract formation persist?
B. Doctrinal Analysis
Under prevailing doctrine, “failure to respond” denotes exclusively the complete absence of any communication addressing the received offer. The state of silence is interrupted by:
- a substantive response (acceptance or rejection of the offer), or
- declarations concerning procedural matters (information regarding the timeframe for consideration, requests for additional information).
By tendering even a non-substantive response, the addressee displaces the operative interpretive rule—providing notice that their silence shall not signify acceptance. Upon delivery of such a non-substantive response, the offeror’s expectation of tacit acceptance ceases to be reasonable and no longer warrants legal protection.
Conversely, communications concerning unrelated matters, or mere acknowledgment of receipt without indication of further procedure, do not interrupt the state of silence.
VIII. Practical Recommendations
A. For Offerors
Practitioners should resist the assumption that absence of response signifies consent—even in dealings with longstanding partners. Those seeking to invoke Article 68² should ensure thorough documentation of ongoing business relations encompassing established practices of tacit acceptance.
Consideration should be given to employing Article 69: incorporating within the offer a request for immediate performance provides a more secure legal foundation than reliance upon the contested concept of ongoing business relations.
Where doubt exists, express confirmation of the counterparty’s position should be requested. The restrictive interpretation of Article 68² by the courts counsels caution—judicial expansion of its application remains unlikely.
B. For Addressees
Addressees should respond promptly, even where additional time for deliberation is required. Communication indicating the anticipated timeframe for consideration suffices to interrupt the state of silence.
While an equivocal response interrupts silence, it does not discharge the obligation to articulate a definitive position. Where interest is lacking, express declination is advisable to forestall subsequent disputes.
IX. Conclusion
Silence in legal transactions constitutes a double-edged instrument. As a general proposition, failure to respond to an offer signifies absence of consent to contract formation; yet under particular configurations of parties and circumstances, such passivity may be construed as implied acceptance. Determinative factors include the addressee’s professional status, the character of the parties’ relationship—including established practices—and the context of the proposal.
The Polish legal system provides two principal exceptions to the rule that silence does not constitute a declaration of intent: Article 68² (tacit acceptance in ongoing business relations among entrepreneurs) and Article 69 (acceptance through commencement of performance). The latter provision, though less frequently examined in scholarly commentary, offers a simpler and more certain mechanism for parties wishing to streamline contract formation procedures.
An equivocal response, while interrupting the state of silence within the meaning of Article 68², does not resolve the underlying uncertainty—it merely defers its resolution. In professional commercial dealings, best practice remains clear, unambiguous communication in contractual negotiations. As the protracted litigation before the Warsaw Court of Appeals demonstrates, disputes concerning the legal significance of silence may engage judicial resources for years, generating costs disproportionate to the matter in controversy.
Silence may indeed be golden—but in contractual relations, it more frequently proves a source of costly misunderstanding.
Founder and Managing Partner of Skarbiec Law Firm, recognized by Dziennik Gazeta Prawna as one of the best tax advisory firms in Poland (2023, 2024). Legal advisor with 19 years of experience, serving Forbes-listed entrepreneurs and innovative start-ups. One of the most frequently quoted experts on commercial and tax law in the Polish media, regularly publishing in Rzeczpospolita, Gazeta Wyborcza, and Dziennik Gazeta Prawna. Author of the publication “AI Decoding Satoshi Nakamoto. Artificial Intelligence on the Trail of Bitcoin’s Creator” and co-author of the award-winning book “Bezpieczeństwo współczesnej firmy” (Security of a Modern Company). LinkedIn profile: 18 500 followers, 4 million views per year. Awards: 4-time winner of the European Medal, Golden Statuette of the Polish Business Leader, title of “International Tax Planning Law Firm of the Year in Poland.” He specializes in strategic legal consulting, tax planning, and crisis management for business.
