Does Silence Constitute Acceptance of a Contractual Offer?
I. Introduction: The Deceptive Simplicity of Silence
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 even to experienced practitioners.
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 what appears at first glance to be a straightforward rule quickly reveals itself as a labyrinth of exceptions, qualifications, and competing doctrines.
This article aims to provide a clear roadmap through this complexity. The central question—whether silence can bind a party to a contract—admits no singular answer. Instead, the outcome depends upon a constellation of factors: the professional status of the parties, the nature of their prior dealings, the content of the offer itself, and even the specific type of contract under consideration. A misapprehension of these rules may engender protracted litigation, substantial collection costs, and commercial relationships damaged beyond repair.
The 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: 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
A. The Doctrinal Foundation
Before navigating the exceptions, one must first understand the rule from which they depart. 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 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.”
B. The Rationale: Protecting Contractual Autonomy
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. The law sensibly refuses to countenance such an outcome.
Yet commercial reality demands flexibility. In certain contexts, requiring formal acceptance for every transaction would impede the velocity of trade and frustrate reasonable expectations. The Polish Civil Code accordingly carves out several carefully circumscribed exceptions—each operating under distinct conditions and producing different legal consequences. Understanding which exception applies in a given situation is essential for any entrepreneur seeking to manage contractual risk.
III. The First Exception: Implied Acceptance Among Merchants (Article 68² of the Civil Code)
A. The Statutory Framework
The most significant departure from the general rule appears in Article 68² of the Polish Civil Code. This provision 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.
The practical import of this rule cannot be overstated. For qualifying transactions, silence transforms from a legal nullity into a binding commitment. Yet the provision’s application requires satisfaction of several cumulative conditions, each of which merits careful examination.
B. Four Cumulative Requirements
First: Entrepreneurial Status of the Addressee. The addressee of the offer must possess the status of an entrepreneur (przedsiębiorca). Notably, the professional status of the offeror remains immaterial—the provision may apply even where the offeror is a consumer, provided the addressee conducts commercial activity.
Second: Ongoing Business Relations. The parties must maintain ongoing business relations—a concept warranting particular attention. As the Katowice Court of Appeals explained: “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.”
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.” The inquiry thus extends beyond mere durational persistence to encompass the cultivation of established practices regarding tacit acceptance.
Third: Correspondence with Business Activities. The offer must pertain to activities actually conducted by the entrepreneur-addressee within the scope of their business operations. An offer falling outside this scope does not trigger the provision.
Fourth: Absence of Exclusion. Article 68² 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.
C. Restrictive Interpretation
Legal scholarship and jurisprudence advocate 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.” Exceptional provisions ought not be construed expansively. For the entrepreneur seeking to rely upon this exception, cautious optimism is warranted at best.
IV. The Second Exception: Acceptance Through Performance (Article 69 of the Civil Code)
A. A Different Mechanism Entirely
Alongside Article 68², the Polish legal system provides a second mechanism for tacit contract formation—one that operates on fundamentally different principles. 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.
The critical distinction is this: Article 68² permits contract formation through pure inaction, whereas Article 69 requires affirmative conduct. The addressee must actually begin performing the contract—dispatching goods, initiating production, or commencing services. Mere silence, without more, does not suffice.
B. Practical Advantages Over Article 68²
For practitioners, Article 69 offers several advantages over its counterpart.
First, it does not require proof of “ongoing business relations”—a contested concept that invites litigation. An offeror may simply stipulate in the offer itself that immediate performance is requested, thereby dispensing with the expectation of formal acceptance.
Second, the provision extends beyond entrepreneur-to-entrepreneur transactions. Consumer relationships fall within its scope as well.
Third, Article 69 has remained substantially unchanged since the Civil Code’s promulgation and successfully fulfills its function of facilitating commerce without the interpretive controversies attending Article 68².
C. The “Appropriate Time” Requirement
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.
V. A Critical Distinction: Duty to Respond Versus Implied Acceptance (Article 736 of the Civil Code)
A. The Problem of Conflation
Entrepreneurs frequently conflate two distinct legal phenomena: provisions that create implied acceptance through silence, and provisions that merely impose a duty to respond without affecting contract formation. Article 736 of the Civil Code exemplifies the latter category—and misunderstanding its operation leads to costly errors.
B. The Scope of Article 736
Article 736 provides that a person who professionally engages in performing services for others, if unwilling to accept a mandate (zlecenie), must promptly notify the prospective principal of this refusal. The same obligation applies to any person who has declared their readiness to perform services of the relevant type.
At first glance, this provision appears to create consequences for silence. If a professional service provider fails to decline an offer, does the contract form? The answer, definitively, is no.
C. Why Silence Under Article 736 Does Not Create a Contract
As the Supreme Court explained (Case No. II CSK 208/06): “Article 736 of the Civil Code does not alter the general rules governing contract formation. The mandatary has no obligation to accept the offer, and the absence of a negative response to an offer is not equivalent to contract formation. Neglect of the duty in question may, however, give rise to liability for resulting damage.”
This distinction carries profound practical significance. Article 736 imposes a duty of conduct rooted in commercial morality—what scholars term the “obligation to act honestly in contacts with a counterparty prior to formation of the contractual bond.” Yet breach of this duty does not conjure a contract into existence. It merely sounds in damages.
D. The Nature and Scope of Liability
Where a professional service provider fails to promptly decline an offer, they face tort liability (odpowiedzialność deliktowa) under Article 415 of the Civil Code—not contractual liability. The prevailing doctrinal view, confirmed by jurisprudence, holds that no obligational relationship arises between offeror and addressee; the notification of non-acceptance lacks the characteristics of performance (świadczenie) within the meaning of Article 353.
The scope of recoverable damages is limited to the so-called “negative interest” (ujemny interes umowny)—that is, losses the offeror sustained by virtue of relying upon the prospect of contract formation. This encompasses both actual losses (damnum emergens) and, in the dominant view, lost profits (lucrum cessans) within those boundaries. Critically, however, the addressee does not bear liability for damages arising from non-performance of the mandate itself—for no mandate was ever formed.
E. The Practical Takeaway
For entrepreneurs, the lesson is clear: when dealing with professional service providers—attorneys, accountants, consultants, and similar professionals—the absence of a response does not create a contract. It may, however, expose the silent party to liability for the offeror’s reliance damages. And for the offeror, the absence of response provides no basis for assuming the services will be rendered; prudent practice demands express confirmation.
VI. The Warsaw Court of Appeals Decision: Mutual Assent as Constitutional Element
A. Factual Background
The Warsaw Court of Appeals decision (Case No. I ACa 491/18) provides an instructive illustration of these principles in operation, albeit involving a configuration distinct from the classical offer under Article 66.
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. The Court’s 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. One may accept funds without thereby agreeing to defer collection of the balance. Consequently, no contract establishing repayment terms was effectively formed.
C. Inapplicability of Article 68²
The court further emphasized that Article 68² was inapplicable 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.
VII. Synthesizing the Framework: When Does Silence Bind?
A. Three Sources of Binding Silence
Having surveyed the relevant provisions, we may now synthesize the framework. Legal scholarship identifies three sources of interpretive rules permitting silence to be construed as a declaration of intent resulting in contract formation:
Statutory Provisions. Article 68² expressly invests passivity with the significance of offer acceptance, subject to the cumulative requirements discussed above. One must distinguish such provisions from those that merely impose a duty to respond (Article 736) or associate certain legal consequences with passivity without characterizing it as a juridical act.
Contractual Agreement. Parties may agree in advance that failure to respond to specified proposals shall constitute acceptance. Such arrangements frequently appear within ongoing commercial cooperation, where parties develop proprietary procedures for tendering and accepting orders.
An important caveat: 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. The offeror cannot, by his own declaration, impose upon the addressee the burden of responding on pain of being bound.
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 foundation, permitting contract formation through commencement of performance where custom so provides.
B. A Decision Tree for Practitioners
When confronted with a silent counterparty, the practitioner should proceed through the following analysis:
- Is the addressee an entrepreneur acting within the scope of their business? If not, Article 68² is inapplicable.
- Do the parties maintain ongoing business relations characterized by established practices? Incidental, sporadic transactions do not suffice.
- Has the addressee commenced performance? If so, Article 69 may apply regardless of the entrepreneur question.
- Does a prior contractual agreement assign meaning to silence? Such agreements are binding; unilateral declarations in offers are not.
- Is Article 736 applicable? If so, silence does not form a contract but may generate tort liability for reliance damages.
Absent affirmative answers to the relevant inquiries, silence remains what the general rule declares it to be: the absence of consent.
VIII. 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 under Article 68²? Or does the risk of implied contract formation persist?
B. Doctrinal Analysis
Under prevailing doctrine, “failure to respond” within the meaning of Article 68² 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 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.
C. Practical Implications
For the addressee, the message is clear: any response is better than no response. Even a holding communication—”we have received your offer and will respond by [date]”—suffices to interrupt the period and preserve decisional autonomy.
For the offeror, equivocal responses should prompt follow-up rather than reliance. The fact that silence has been interrupted does not mean acceptance has been communicated.
IX. Practical Recommendations for Commercial Parties
A. For Offerors
Do not assume silence constitutes consent. Even in dealings with longstanding partners, the burden of proving “ongoing business relations” with established practices of tacit acceptance falls upon the party asserting contract formation. Courts interpret Article 68² restrictively.
Consider employing Article 69 instead. 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 the addressee commences performance, the contract forms—regardless of formal acceptance.
Document the relationship. If you intend to rely upon Article 68², maintain records demonstrating the history of dealings, the pattern of prior tacit acceptances, and any established practices between the parties.
Request express confirmation. Where doubt exists, express confirmation eliminates it. The marginal inconvenience of requesting a response pales against the cost of litigating whether silence bound the parties.
B. For Addressees
Respond promptly—even if only to buy time. A holding communication preserves your options and interrupts any period for tacit acceptance. Professional service providers subject to Article 736 face potential tort liability for failing to respond; even where that provision does not apply, prompt response represents sound commercial practice.
Decline expressly when uninterested. Ambiguity invites dispute. A clear declination forecloses subsequent controversy over whether silence might have constituted acceptance.
Review existing contractual frameworks. Prior agreements may contain provisions assigning legal significance to silence. Awareness of such provisions is essential to avoiding inadvertent commitment.
X. Conclusion: Clarity as Commercial Imperative
Silence in commercial 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. The outcome depends upon a matrix of factors: the addressee’s professional status, the nature and duration of the parties’ relationship, the content of the offer, and the type of contract at issue.
The Polish legal system provides two principal exceptions permitting contract formation through silence: Article 68² (tacit acceptance in ongoing business relations among entrepreneurs) and Article 69 (acceptance through commencement of performance). These provisions operate under different conditions and produce different consequences. A third provision, Article 736, imposes duties of response upon professional service providers without affecting contract formation—breach sounds in tort, not in the creation of contractual obligations.
Between these provisions lies a labyrinth of requirements, exceptions, and interpretive controversies. Yet the thread that guides practitioners through this complexity is a simple principle: clarity eliminates risk. An equivocal response, while interrupting the state of silence, does not resolve the underlying uncertainty—it merely defers its resolution.
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 grossly disproportionate to the matter in controversy. In professional commercial dealings, best practice remains what it has always been: clear, unambiguous communication at every stage of contractual negotiation.
Silence may indeed be golden—but in contractual relations, it more frequently proves a source of costly misunderstanding. The prudent entrepreneur speaks plainly, responds promptly, and documents thoroughly. In the labyrinth of Polish contract formation rules, these practices constitute the surest path to commercial certainty.
Robert Nogacki – licensed legal counsel (radca prawny, WA-9026), Founder of Kancelaria Prawna Skarbiec.
There are lawyers who practice law. And there are those who deal with problems for which the law has no ready answer. For over twenty years, Kancelaria Skarbiec has worked at the intersection of tax law, corporate structures, and the deeply human reluctance to give the state more than the state is owed. We advise entrepreneurs from over a dozen countries – from those on the Forbes list to those whose bank account was just seized by the tax authority and who do not know what to do tomorrow morning.
One of the most frequently cited experts on tax law in Polish media – he writes for Rzeczpospolita, Dziennik Gazeta Prawna, and Parkiet not because it looks good on a résumé, but because certain things cannot be explained in a court filing and someone needs to say them out loud. Author of AI Decoding Satoshi Nakamoto: Artificial Intelligence on the Trail of Bitcoin’s Creator. Co-author of the award-winning book Bezpieczeństwo współczesnej firmy (Security of a Modern Company).
Kancelaria Skarbiec holds top positions in the tax law firm rankings of Dziennik Gazeta Prawna. Four-time winner of the European Medal, recipient of the title International Tax Planning Law Firm of the Year in Poland.
He specializes in tax disputes with fiscal authorities, international tax planning, crypto-asset regulation, and asset protection. Since 2006, he has led the WGI case – one of the longest-running criminal proceedings in the history of the Polish financial market – because there are things you do not leave half-done, even if they take two decades. He believes the law is too serious to be treated only seriously – and that the best legal advice is the kind that ensures the client never has to stand before a court.
