In the instant case, a contract would be said to exist. Such a contract would be one implied in fact; it is neither compulsory nor necessary for a contractual agreement to be expressly stated either in writing or orally. In determining the existence of an implied contract, the actions of the parties and the surrounding circumstances are taken into consideration. It is essential to show a definite offer, unequivocal acceptance, consideration and mutual intent to be bound by the agreement before a contract can be implied from the facts (Legal Information Institute, n.d. ).
In the instant case, the picking of the candy bar by McDougal constitutes a valid and clear offer, his’ waving the candy at Krunch would be interpreted as a communication of the offer. For a contract to exist, even when it is implied, it must be shown that he accepted the offer communicated to him. Generally, silence is not considered acceptance of an offer unless it is specified by the offeree. The main issue in this kind of situation is that an offeror cannot impose silence as form of acceptance on the offeree.
However, silence might constitute an acceptance if the offeree intended to accept the offer or where an offeror makes an offer to an offeree and instead of him refusing the offer, he (the offeree) accepts the benefit of the service. In order for silence to be considered acceptance, there usually are some prior dealings between the two parties and that it is customary for the two parties to treat silence as an acceptance as (American Bar Association, 2004).
Another instance in which silence may be considered acceptance is when both parties have agreed that silence can be treated as acceptance (LegalMatch, 2009). In light of the above facts, by virtue of their long-standing relationship and past dealings, the actions of McDougal and the silence on the part of Krunch, constitute an implied contract and in a worst case scenario would be a quasi-contract. References American Bar Association. (2004). Can Silence signal Acceptance?
Retrieved May 2010, from ABA Family Legal Guide: http://public. findlaw. com/abaflg/flg-9-1a-26. html Legal Information Institute. (n. d. ). Contract implied in Fact. Retrieved May 2010, from Cornell Law School: http://topics. law. cornell. edu/wex/contract_implied_in_fact LegalMatch. (2009, 06 16). Silence as Acceptance in contracts. Retrieved May 2010, from http://www. legalmatch. com/law-library/article/silence-as-acceptance-in-contracts. html