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Citations:

Bluebook 21st ed.

Leonard Njagi, Howell Securities LTD. v. Hughes: Yates Building Co. LTD. v. R. J.
Pulleyn & Sons (York) LTD.: Communication of Acceptance: Development of a More
Realistic Approach, 12 E. AFR. L.J. 123 (1976).

ALWD 7th ed.

Leonard Njagi, Howell Securities LTD. v. Hughes: Yates Building Co. LTD. v. R. J.
Pulleyn & Sons (York) LTD.: Communication of Acceptance: Development of a More
Realistic Approach, 12 E. Afr. L.J. 123 (1976).

APA 7th ed.

Njagi, L. (1976). Howell securities ltd. v. hughes: yates building co. ltd. v. r. j.
pulleyn & sons (york) ltd.: communication of acceptance: development of more
realistic approach. East African Law Journal, 12(1), 123-134.

Chicago 17th ed.

Leonard Njagi, "Howell Securities LTD. v. Hughes: Yates Building Co. LTD. v. R. J.
Pulleyn & Sons (York) LTD.: Communication of Acceptance: Development of a More
Realistic Approach," East African Law Journal 12, no. 1 (1976): 123-134

McGill Guide 9th ed.

Leonard Njagi, "Howell Securities LTD. v. Hughes: Yates Building Co. LTD. v. R. J.
Pulleyn & Sons (York) LTD.: Communication of Acceptance: Development of a More
Realistic Approach" [1976] 12:1 E Afr LJ 123.

AGLC 4th ed.

Leonard Njagi, 'Howell Securities LTD. v. Hughes: Yates Building Co. LTD. v. R. J.
Pulleyn & Sons (York) LTD.: Communication of Acceptance: Development of a More
Realistic Approach' [1976] 12(1) East African Law Journal 123

MLA 9th ed.

Njagi, Leonard. "Howell Securities LTD. v. Hughes: Yates Building Co. LTD. v. R. J.
Pulleyn & Sons (York) LTD.: Communication of Acceptance: Development of a More
Realistic Approach." East African Law Journal, vol. 12, no. 1, 1976, pp. 123-134.
HeinOnline.

OSCOLA 4th ed.

Leonard Njagi, 'Howell Securities LTD. v. Hughes: Yates Building Co. LTD. v. R. J.
Pulleyn & Sons (York) LTD.: Communication of Acceptance: Development of a More
Realistic Approach' (1976) 12 E Afr LJ 123

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CASE NOTE
HOWELL SECURITIES LTD. v. HUGHES: YATES BUILDING
CO. LTD. v. R. J. PULLEYN & SONS (YORK) LTD.

Communication of Acceptance: Development of

A More Realistic Approach

The two recent English cases of Holwell Securities Ltd. v. Hughes'

and Yates Building Co. Ltd. v. R. J. Pulleyn and Sons (York) Ltd.,2
dealing with the issue of acceptance of an offer through the post will
be greeted with pleasure by students of Commercial Law. For, these
cases have added a fresh and welcome realism to this branch of the
law.
For a contract to be properly concluded, the general rule has
always been that there must be an offer and an unconditional accept-
ance of that offer. However, it is not enough for an offeree to intend
to accept the offer. He must intimate 'to the offerer by some overt
act, either in writing, by word of moath, or by conduct' before his
intention can have legal effect. This means that acceptance must be
communicated to the offeror.4 In ordinary parlance, an acceptance is
not communicated to the offeror unless and until it reaches him.
But there are excepitions to the rule that acceptance speaks from
the moment it is communicated to and received by the offeror. Out-
standing among such exceptions is the one relating to the communi-
cation of acceptance through the post. In transactions which pass bet-
ween parties at a distance and which have therefore to be carried
out through the medium of post, the vital question is: at what moment
in time can the acceptance be said to have been effectively communicated
to the offeror? Three options are open. Either the acceptance is effectively
communicated when the letter of acceptance is posted; or when it is
delivered to the offerer's address; or when the offerer actually becomes
aware of the contents of the letter.5 Of these three options, English

1 [1974] 1 W.LR. 155.

2 The Times, 27 February, 1975, p. 23.
3 Since the decision in Carlill v. Carbolic Smoke Ball Co., (1892) 2 Q.B.
484, it cannot be doubted that one's conduct may amount to an acceptance
of an offer, particularly in the so-called unilateral contracts.
4 There are instances in which an offeror may waive the need for the offeree
to communicate acceptance. Waiver is usually presumed in unilateral
contract (note 2 supra).
CASE NOTE 124

common law has chosen the first.- Hence where an offer is made and
accepted by letters sent through the post, the contract is completed as
of the moment the letter accepting the offer is posted, even though it
never reaches its destination.7
This particular rule is not however, grounded in logic, but is
dictated by sheer commercial -expediency. One can imagine a situation
in which a person makes an offer to buy certain goods at a certain
price. If the prices start falling after he has already posted his offer,
he might regret having made the offer and may well be tempted to call
it off. Unknown to him, however, the letter of acceptance may already
have been posted. Conversely, a person may offer to sell goods at a
certain price. If the prices start rising after he has already posted
the offer, he might also be tempted to back out. And here again, un-
known to him, the letter of acceptance may already have been posted.
In situations like these, it would be unfair to the offeree to allow the
offeror to revoke the offer after the letter of acceptance has been
posted, merely because the offeror has not yet received it.5 Such a
consequence is clearly undesirable. The position of the offeree is such
that once he has posted his acceptance, he relies on the validity of
such acceptance, and in a fluctuating market, such reliance may be
very important because of lost opportunities. It is probably with such
problems in mind that it has been contended that any other choice would
lead to extraordinary and mischievous consequences. 9 To that extent,
perhaps, there is some justification for the rule that in contracts formed
by correspondence through the post, the contract is completed the
moment the letter of acceptance is posted.
As already remarked, this rule is purely one of convenience. Un-
fortunately, by -seeking to avoid some mischievous consequences, the
rule has led to other consequences which are equally mischievous.

5 See Cheshire & Fifoot's Law of Contract, Butterworths, 8th Ed., (1972)
p. 42.
6 Many cases have been decided on this footing. Among those that imme-
diately come to mind are Adams v. Lindsell, (1818), 1 B. & Ald. 681,
Household Fire and Carriage Accident Insurance Co. v. Grant (1879) 4
Ex. D. 216, and Byrne v. Van Tienhoven (1880), 5 C.P.D. 344.
7 Per Lindley, J. in Byrne v. Van Tienhoven, at p. 348.
8 For other views in support of the choice see Winfield "Some Aspects of
Offer and Acceptance", (1939) 55 Q.L.R., pp. 508-9.
9 Cf judgment of Mellish, L.J. in Harri's case (1872), Ch. App. 587, at p.
594. In particular, the possibilities of fraud are substantial. As a matter
of business convenience, is it, perhaps, more reasonable to expect an
offeror to inquire whether his offer has been received than it is to expect
an offeree to inquire whether his acceptance has been received?
125 CASE NOTE

Once the letter of acceptance is posted, the contract is thereby com-

pleted, and the offeror is immediately bound to the terms of the con-
0
tract, even though such letter goes astray and never reaches him.'
Offerors could be, and some have been, adversely affected by such
letters of acceptance which in fact never reached them. In Household
Fire and Carriage Accident Insurance Co. v. Grant,", for example, the
offeror applied for shares in a company. He was allotted the shares, and a
letter to that effect was duly posted to him. The letter, however, never
reached him. When the company went into liquidation a few years later, he
was nevertheless held liable, much to his dismay, as a contributory.
One of the arguments advanced in support of such a conclusion is
that the reliability and general competence of the modern Post Office
make the risk of loss or delay almost negligible. However, the fact that
a letter can get lost in the Post Office even today' 2 is fatal to any such
argument. And to crown the absurdity, if the letter goes astray, even
owing to the fault of the offeree himself, as where he misdirects the
letter,' 3 the offeror is probably still bound.
It is a trite observation that this principle of law, if rigidly applied,
tends to overlook the injustice and inconvenience which it is likely to
cause to both parties, and more so to the offeror. For, why should the
offeror be bound by an acceptance which, as a matter of fact, he
has not received, and of whose existence he is not even aware? It is
against this background that the case of Holwell Securities Ltd. v.
Hughes"4 should be viewed as providing a welcome development in
this area of the law. In this case, the defendant granted to the plaintiff
a six month's option to purchase certain property. The option, which
amounted to an offer, was to be exercised (or accepted) "by notice
in writing" to the defendant. The plaintiff sent a written acceptance
by ordinary post, but this was never received by the defendant. The
plaintiff claimed that he had made a valid acceptance as soon as the
letter exercising the option was posted. The important question was

10 See note 7 supra.

11 (1879) 4 Ex. D. 216.
12 Holwell's case, discussed below, was decided as recently as 1974. It is
conceded that cases of lost letters of acceptance are not very common.
And when they arise, there must be tremendous proof problems. How, for
instance, does the offeree prove posting? How does the offeror prove non-
receipt? Probably such factual elements will be decided on the basis of
oral testimony by the interested parties, and the courts will rule against
the party they suspect is lying.
13 Of course it might be argued that the communication of the acceptance
has not really been directed to the offeror.
14 [1974] 1 W.L.R. 155.
CASE NOTE 126

whether or nort the posting of acceptance, without more, concluded

the contract.
If posting a letter which does not reach the addressee is a suffi-
cient communication of acceptance, 5 then, prima fade, it should
equally be a sufficicnt conmunication of everything else which may be
communicated by post, including any notice in writing.' Hence, on the
facts of the Holwell's case, once such notice was mailed, it should have
been taken, according to the traditional view, as having been effectively
communicated to the offeror, as soon as it was posted. But the English
Court of Appeal did not follow this traditional view. On he contrary,
it ruled that the option had not been validly exercised.
The central argument of the court was that the option clearly
and unequivocally stated that it was to be exercised by "notice in
writing". Did the mere posting of the "notice in writing" by the
plaintiff constitute "notice" to the defendant? Clearly not. For what
is "notice"? A "notice" is a means of making something known.17 If
a notice is to be of any value, it must be an intimation to someone.
A notice which does not impinge on anyone's mind is not operative
as such."' Therefore, where an offeror requests that the offeree should
notify his acceptance "by notice in writing", it is not enough that the
offeree reduces such a notice into writing and posts it if it never
actually reaches the offeror. In that event, if the written instrument
goes astray, there is no "notice" to the offeror; consequently, there
is no acceptance.
The approach of the Court of Appeal to this problem appears to
constitute a visible departure from the rigidity of the orthodox view
that where the circumstances are such that it must have been within
the contemplation of the parties that, according to the ordinary usages
of mankind, the post might be used as a means of communicating the
acceptance of an offer, the acceptance is complete as soon as it is
posted.' 9 In Holwell Securities Ltd. v. Hughes, owing primarily to the
construction which the court gave to the word "notice", the decision
of the Court of Appeal sounded a clear warning that the issue of
acceptance through the post should be approached with care. The need
to "communicate" acceptance is too fundamental to be lightly dispensed
15 As in those cases where the acceptance never reached the offeror, e.g.
Household Fire and Carriage Insurance Co. v. Grant (supra).
16 Cf. judgment of Bramwell, L.J. in Household Fire and Carriage insurance
Co. v. Grant, at p. 234.
17 Per Lawton, L.J., at p. 160.
18 The Concise Oxford Dictionary, 5th Ed., defines "notice" as a "formal
intimation of something or instructions to do something."
19 Per Lord Herschell in Henthorn v. Fraser [1892] 2 Ch. 27, at p. 33. This
view was unanimously shared by his brethren, Lindley and Kay, L.JJ.
127 CASE NOTE

with. This decision should therefore be applauded as introducing a

most welcome qualification to the general rule as to acceptance through
the post. It also provides a realistic solution to a legal problem which
does not seem to be amenable to any logical solution.
The common and universal principle is that an agreement ought
to receive that construction which its language will admit, which will
best effectuate the intention of the parties, and that greater regard is to
be had to the clear intent of the parties than to any particular words which
they may have used in the expression of their intent. 20 And, if by any
reasonable construction the intention of the parties can be arrived at,
and that intention carried out consistently with the rules of law, the
courts will take that course. 2 1
In Holwell Securities Ltd. v. Hughes, the parties clearly spoke
of the one giving the other "notice in writing." The only reasonable,
and perhaps irresistible, inference to be drawn from such language is
that the intention of the parties was that the offeror should actually
receive notification of the acceptance. If that inference is correct, then
by deciding that the letter did not give rise to an acceptance, the
court was doing nothing more than giving effect to the intention of
the parties. Indeed, it may be argued that it was with a view to giving
effect to such intention that the offeree posted the letter at all. It is
unlikely that he ever contemplated the possibility of the letter going
astray. What he probably intended to do was to intimate to the defen-
dant, by "notice in writing," that he had accepted the offer. But since
the purported "intimation" proved abortive, it was only fair and
proper that after the miscarriage of his effort to communicate accept-
ance, the offeree should not be allowed to shelter under the tradi-
tional rule which assumes, conclusively, that once a letter of accept-
ance is posted, there is communication of acceptance even though such
communication never comes to the notice of the offeror. An applica-
tion of such a rule in such circumstances would obviously defeat the
intention of the parties.
By deciding that actual communication of acceptance is impera-
tive in such situations, the court was not only giving effect to the inten-
tion of the parties, but was also adopting a more realistic approach
to the problem. This approach, it is submitted, is preferable to the
traditional rule, which could entail hardship to either of the parties.
In particular, this decision restricts the province of application of the
orthodox rule as to postal acceptance when the express terms of an
offer require, not the mere posting of 'the acceptance, but the actual

20 See Chitty on Contracts, 1955, Sweet & Maxwell, 21st Ed., p. 144.
21 Ibid., p. 148.
CASE NOTE 128

receipt of that acceptance by the offeror. In such a case, the mere

posting of the acceptance is not an acceptance unless it actually reaches
the offeror. Equally, having regard to all the circumstances, including
the nature of the subject-matter under consideration, 22 the intention
that ecceptance must be notified may be implied in a given situation.
Thus, the orthodox rule will not apply if the negotiating parties can-
not have intended that there should be a binding agreement until the
party accepting the offer or exercising an option has in fact communi-
cated the acceptance or the exercise of the option to the other. 2 3 Here,
the application of the rule would not only be inconvenient, but would
also defeat the intention of the parties. Finally, as the rule is only
one of convenience, and the courts are aware of this, they should
feel less constrained to its rigid application should that result is in-
convenience or absurdity.24 Therefore, the rule that an acceptance
made through the post is effective from the moment of posting must
always be regarded as open to qualification.
The realism manifested by the courts in this field in recent times
is even better illustrated by the case of Yates Building Co. v. Pulleyn
and Sons,2 5 concerning adherence to a prescribed mode of acceptance.
In this case, the plaintiffs were interested in acquiring some building
plots which were owned by the defendants. An agreement was accord-
ingly entered into. Under that agreement, the plaintiffs took up the
plots in portions payable on April 6 each year. One of the plots was
due to be taken up, and the deposit paid, between April 6, 1973, and
May 6, 1973. The option clause stated that the option was exercisable
"by notice in writing" given by or on behalf of the plaintiffs or their
solicitors between April 6 and May 6, 1973, "such notice to be sent
by registered or recorded delivery post" to the registered office of the
defendants or their solicitors. By a letter dated April 30, 1973, the
plaintiffs' solicitors wrote to the defendants' solicitors by ordinary post,
formally exercising the option, and enclosing a cheque for £1890 by
way of deposit. The defendants' solicitors received this notice and
replied thereto on May 4, but their reply was not received until

22 For a sample of such circumstances, see the dissenting judgment of Bram-

well. L.J., in Household Fire Insurance Co. v. Grant (1879) 4 Ex. D. 216,
at pp. 234-235.
23 Per Lawton, L.J., at p. 161.
24 A telling example is the rhetorical question posed by Lord Bramwell in
British and American Telegraph Co. v. Calson (1871) L.R. 6 Exch. 108,
wherein his Lordship asked, "if a man proposed marriage and the woman
was to consult her friends and let him know, would it be enough if she
wrote and posted a letter which never reached him?" For more such
situations, see note 22 supra
25 The Times, 27 February, 1975, p. 23.
129 CASE NOTE

May 7.2 In their reply, they returned the cheque and said that the
letter of April 30, coming, as it did, within the time allowed for the
sent by registered or recorded delivery post as required. The plain-
tiffs therefore brought this action, and the only issue was whether the
letter of April 30, coming, as it did, within the time allowed for the
exercise of the option, but not by registered or recorded delivery post
as requested, was a sufficient and acceptable exercise of the option.
The trial judge held that the form of the la ter of acceptance did not
conform to the requirements of the offer, and that therefore it was
not a sufficient exercise of the option, or a valid acceptance of the
offer.
The Court of Appeal,2 7 however, reversed the decision of the
trial count. The former thought that as long as the plaintiff's intention
to acquire the plots was unequivocally brought to the notice of the
defendants' duly authorised agents, even though by ordinary as opposed
to registered or recorded delivery post as requested, this was never-
theless an effective means of exercising the option, and that therefore
the offer was duly accepted, consequent upon which there was a valid
contract. Hence, even though the mode of communication of accept-
ance may not conform to the specific form prescribed by the offeror,
it is nevertheless a valid communication of acceptance as long as the
information therein is brought to the actual notice of the offeror, or
his duly authorised agent.
This decision constitutes another interesting development which
gives this aspect of the law much more realism. There is authority
for the proposition that a person making an offer may prescribe the man-
ner in which it is to be accepted.2 8 There is further authority for the pro-
position that where the offeror has prescribed a particular mode of
acceptance, a communication of the acceptance in a different but equally
speedy manner is nevertheless valid. 2 9 In such eventuality, the offeror
should not be heard to complain that the requested method of accept-
ance has not been complied with. If this is the correct view of the law,
then it may reasonably be inferred that the manner of acceptance
prescribed by the offeror need not be followed strictly to the letter as
long as a substantive acceptance is actually tendered to the offeror in
a manner which is not inconvenient to him.

26 Thus depriving the plaintiffs' solicitors of any opportunity to resend the

notice by registered or recorded delivery post as the time for exercising
the option had by this time expired.
27 Coram: Lord Denning, M.R., and Orr and Scarman, L.JJ.
28 See the discussion in Cheshire and Fifoot's Law of Contract Butterworths,
1972, 8th Ed. pp. 39-40.
29 Tinn v. Hoffman and Co. (1873) 29 L.T. 271.
CASE NOTE 130

In Yates Building Co. Ltd. v. Pulleyn and Sons (York) Ltd. the
Court of Appeal thought that the failure to conform strictly to the
requested form was not fatal to the substantive communication of the
acceptance. In this way, the court was in effect distinguishing between
the de facto intimation, of acceptance, and the manner, or form, of
such intimation. For whereas it was imperative that the exercise of the
option should be notified to the defendants, 0 it was not equally impera-
tive that the notification should take the exact form prescribed by the
offeror. The mode so prescribed was only directive3 ' or permissive,"
but not mandatory or obligaltory. The provision as to registered or
recorded delivery post is advantageous only to the person sending the
letter," in that if there is to be any issue as to whether or not the
notice has in fact been received, registered or recorded delivery post
would put the matter beyond dispute."
The assumption here is that a letter sent by registered or recorded
delivery post will actually be received by the addressee," thereby
effectively communicating the contents therein. This is of advantage
only to the offeree inasmuch as it ensures certainty of communication.
Otherwise, it should be of no consequence to the offeror how the letter
of acceptance is posted as long as he receives it within the period
during which the option should be exercised. It would appear that
the courts will here give effect to the substance of the transaction,
which is the actual communication of acceptance, and not to the form
in which such communication is effected. Otherwise, it would be un-
reasonable for an offeror, after receiving the letter of acceptance, to
reject or deny the communication of acceptance by saying that the
communication was not in the form requested. It is submitted that the
approach of the court to the issue raised in this case is also much more
realistic and practical than would otherwise be the case if undue
weight were to be attached to mere technicalities of the form of
acceptance.
However, this decision is far from saying that the prescribed
form of communication is of no moment. There might be instances

30 Holwell's case, supra

31 Per Lord Denning.
32 Per Lord Scarman, L.J. Note, however, that their Lordships are saying
the same thing albeit in different words. The point is that the substance
of the communication should be kept separate from the form of the
acceptance.
33 Per Lord Denning.
34 Per Scarman, L.J.
35 If a registered letter is not delivered to the addressee, it would probably
be returned to the sender, which would be evidence that the required
notice was not communicated.
131 CASE NOTE

in which the offeror might request that acceptance be communicated

in a particular manner, and a particular manner alone, and even insist
that communication in any other mode will not suffice. He might have
his own good reasons for preferring one mode of acceptance to another,
and therefore he is perfectly entitled ito make it a condition that his
offer may only be accepted in 'the stipulated manner.3" Where the
offeror requires from the offeree notification of the acceptance "by
and that particular method only, would suffice, then perhaps acceptance
by any other method will not do. 7 Where, however, the offeror has
prescribed a particular method of acceptance, but not in terms insisting
that only acceptance in that mode shall be effective, acceptance com-
municated to the offeror in any other manner which is no less advanta-
geous to him will nevertheless conclude the contract.m Here we fall
back on the aforesaid separation between the substantive communica-
tion, which is a communicaition just the same, and the mode of com-
munication, which may be non-essential. The whole problem appears
to be one of interpretation, and, in the absence of some clear judi-
cial guidance, it will be difficult to tell when a stipulated mode of com-
munication is obligary, and when it is merely directory or permissive.
This calls for some clarification from the courts.
The effect of the decisions in the two cases hereinabove discussed
may be reduced into several propositions of law. First, where the
offeror requires from the offeree notification of the acceptance "by
notice in writing", it is not enough that such written notice be put
into the post. If for some reason it does not actually reach the offeror,
then there is no "notification" of the acceptance and therefore there
is no contract. Thus, a prudent offeror can always negate the operation
of the general rule of acceptance through the post by insisting in his
offer that acceptance will be effective only if and when he receives it.
In thait case, proof of posting alone is not effective communication of
the acceptance, and should the letter go astray, there is no contract
between the parties.
Second, where the offeror requests that such notification be com-
municated to him in a particular manner, which is not complied with,
as long as the acceptance is actually brought to his notice, or the
notice of his duly authorised agent, the procedural irregularity will be
of no consequence, and will not, without more, invalidate an other-
36 Cf. the judgment of Hodson, L.J., in Compagrie de Commerce et Com-
mission S.A.R.L. v. Parkinson Stone Co. (1953) 2 Lloyds Rep. 487, at p.
501.
37 See B.S. Eckesley, (1954) 17 M.L.R. 476-7; also Winfield's article (foot-
note 8 supra).
38 Per Buckley, J. in Manchester Discesian Council for v. Commercial and
General Investments Ltd., fl9701 1 W.L.R. 241.
CASE NOTE 132

wise valid communication of acceptance. The counts will here give

regard to the substance, as opposed to the form, of the de facto com-
munication, which is even a better way of giving effect to the intention
of the parties. Third, if the efferor insists that only a communication
in a particular method would suffice, as he is entitled to do, then,
probably, a communication in any other manner will not do. A com-
munication in such other manner would be effective only if it is
acceptable to the offeror. For, in that event, the parties would have
substituted such latter mode of acceptance in place of the original
prescription.3 9
But it might be argued that both cases of Holwell Securities Ltd. v.
Hughes and Yates Building Co. Ltd. v. R.I. Pulleyn and Sons (York)
Ltd. related to real property and, owing to the peculiarities inherent in
that subject,40 that these decisions should best be confined to land law
transactions, and should not be applied generally to other commer-
cial transactions. Against this argument, it may be observed that the
concept of offer and acceptance is applied uniformly in the law of
contract irrespective of the subject-matter of any particular con'tract.41
A contract in which the subject matter is real property is never-
theless a commercial contract like every other. Hence, the inconvenience
which may be experienced by an offeror or an offeree in a real pro-
perty transaction is the same as that to which an offeror or offeree in
any other type of transaction may be exposed. It is therefore sug-
gested that the practical and more realistic approach manifested in
these two decisions should be adopted uniformly in all contractual
dealings and need not be confined exclusively to transactions involving
real property. This approach already obtains in most Continental
European Countries," and is preferable to the English common law
position.
39 See judgment of Hodson, L.J. (footnote 36 supra) at p. 502.
40 See those numerous examples given by Bramwell L.J. in Household Fire
and Carriage Accident Insurance Co. v. Grant (1879) 4 Ex. D. 216 at pp.
234-235.
41 We also speak of offer and acceptance even in a contract of marriage!
42 Such countries as Belgium, Italy, Spain, Rumania, Bulgaria, Portugal and
some South American States have adopted the "system of information,"
according to which a contract is formed only at the moment when the
offeror has been informed of the acceptance. (See P.H. Windfield "Some
Aspects of Offer and Acceptance," (1939) 55 L.Q.R. at p. 506). This is
perhaps more realistic and logical on the ground that mutuality of the
wills of the parties is too important an element to be dispensed with. In
some other states, it is necessary that the letter of acceptance should be
received by the offeror before the contract is completed. Among these
are Germany, Austria, Czechoslovakia, Sweden, Norway, Denmark, and
Poland. (See Winfield. "Some Aspects of Offer and Acceptance", (1939)
55 L.Q.R. at p. 507).
133 CASE NOTE

The relevance of these two cases in Kenya is due to the fact that
the Kenya Law of contract is derived from the English Law of con-
tract. Section 2 of the Kenya Law of Conitract Act43 states:
Save as may be provided by any written law for the time being
in force, the common law of England relating to contract ... shall
extend and apply to Kenya.
The date of commencement of that Act was January 1, 1961. Is this
to say that Kenya "imported" the English common law relating to
contract as it was in England on January 1, 1961, or is it that the
current law of England relating to contract extends and applies to
Kenya? It may be argued that the second alternative is the better
of the two interpretations. One of the objects of this enactment
was to secure "as large a measure as possible of uniformity
with the Unilted Kingdom in the law of contract."" The United King-
dom law in this respect is the common law. Bearing in mind 'that by
its nature, the common law keeps developing as time goes by, the
intended uniformity with United Kingdom law would be achieved only
if Kenya applied the English common law as it may be in England
from time to time. Otherwise such uniformity would never be realised
if we stuck only to the English law as it was on January 1, 1961.
In any case, if the legislature intended to apply the common law
of contract as it was in England on January 1, 1961, it would have
expressly said so.4 But ilt did not. The only reasonable inference is
that the intention of the legislature was to apply 'the "living" common
law of England relating to contracit. This necessarily includes present
day decisions of the English Courts on the law of contract. If this
view is correct, then the Kenya courts will be constrained to treat
the decisions in the above two cases as part and 'parcel of the Kenya
law of contract.
Finally, even if such decisions do not form part of the law of
Kenya, it is common knowledge that in practice, post-1961 English
decisions are indiscriminately cited in Kenya courts. To that end, the
decisions in Holwell Securities Ltd. v. Hughes and Yates Building

43 Cap. 23, Laws of Kenya.

44 See memorandum of objects and reasons for the Law of Contract Bill,
1959.
45 The Judicature Act, Cap. 8, Laws of Kenya, expressly provides in S. 3
that the courts in Kenya are to be guided by the substance of the com-
mon law, the doctrines of equity, and the statutes of general application in
force in Britain on 12 August, 1897, thereby giving a specific date. It
would not have been too difficult for the legislature to provide for a
similar date in the Law of Contract Act if the intention was to adopt
the English common law as it was on a specific date.
CASE NOTE 134

Co. Ltd. v. R.J. Pulleyn and Sons (Ycrk) Ltd. should be applauded
in Kenya for having helped to make the law in this field much clearer
and flexible. Even more, they constitute a development which is much
more realistic, particularly as regards the application of the postal rule
of "acceptance" in its orthodox rigidity.
LEONARD NJAGI*

*Lecturer in Law, University of Nairobi.

I wish to express my special thanks to G.K. Rukwaro and P.A. Morton, Faculty
colleagues, for making many helpful suggestions.