contract-law england-and-wales
In Felthouse v Bindley (1862), why didn&#39;t the nephew claim?
<p><a href="https://www.uclan.ac.uk/staff_profiles/richard-taylor.php" rel="nofollow noreferrer">Prof Richard Taylor</a>, <a href="https://www.slaughterandmay.com/who-we-are/partners/damian-taylor/" rel="nofollow noreferrer">Damian Taylor</a>. <a href="https://www.amazon.co.uk/Contract-Law-Directions-Richard-Taylor/dp/0198836597/ref=dp_ob_title_bk" rel="nofollow noreferrer"><em>Contract Law Directions</em> (6 edn, 2019)</a>. p 41.</p>
<p>Kindly see the last sentence, emboldened, at the bottom.</p>
<blockquote>
<h2>Acceptance by silence</h2>
<p>The law often makes a distinction between positive conduct and omissions—in criminal law it is
an offence to push a man off a cliff but not normally an offence to omit to call a warning before
someone steps off the edge. The same is true in contract law. Whilst conduct may amount to an
acceptance, doing nothing, i.e. silence, will rarely count. The reasoning is the same as in other
areas of law; a man must not be put under a duty to act without good reason. If silence was
readily accepted as a mode of acceptance in contract law then I could go around telling everybody
in sight that I would assume they had accepted my offer to buy all their property for 10
pence if I did not hear from them within one hour. This would place a duty on everybody I met
to reject my offer within one hour if they did not want to be bound—clearly a ridiculous situation.
Therefore, the general rule established in <em>Felthouse v Bindley</em> (1862) is that silence cannot
constitute an acceptance. In that case a nephew and his uncle had negotiated the sale of the
nephew’s horse. They misunderstood each other and became confused about the agreed price.
In a letter, the uncle suggested that they split the difference and that if he heard no more about
it he would consider the sale done for this middle price. The nephew said nothing more to the
uncle but clearly accepted the new price because he told his auctioneer to withdraw the horse
from auction in which it was to be sold as he had already sold it to his uncle. The auctioneer
nevertheless sold the horse in the auction by mistake and the uncle sued him for interfering with
his property rights over the horse (known as the tort of conversion). It was held that the uncle
had not become the owner of the horse, and therefore had no title to sue, because the contract
of sale between the uncle and nephew lacked an acceptance and so never existed. You should
note that it was the uncle (the offeror) who claimed there was a contract and it was he who had
introduced the idea that acceptance could be by silence—<strong>if instead it had been the nephew, who
sought to enforce the contract, a different result might have been appropriate</strong>.</p>
</blockquote>

<h2>Because he has no dispute with anyone</h2>

<p>Or at least, none he was willing or able to sue over.</p>

<p>While the auctioneer had sold the nephew's horse after being told not to, if the nephew was happy with the price he obtained then he doesn't have to sue the auctioneer for screwing up. Furthermore, if the price the auctioneer obtained for the nephew was greater than would have been obtained from the uncle, it would appear the nephew had suffered no damage from the auctioneers mistake - the legal equivalent of <a href="https://grammarist.com/phrase/no-harm-no-foul/" rel="nofollow noreferrer">no harm, no foul</a>. You can't sue someone if they didn't cause you damage.</p>
