In what situations does silence mean consent?

Silence as a declaration of will

Silence as a declaration of intent in legal dealings with examples and explanations

In the series of essays on the declaration of intent, the most important problems relating to the declaration of intent have already been dealt with. A topic that comes up again and again in exams should be dealt with at this point. In the first part of the series of essays on the declaration of intent, it was already mentioned that an objective statement of intent must be set in order for a declaration of intent to exist at all. It was also indicated at this point that in exceptional cases it can happen that silence is given explanatory power. Although the silence of a person is generally regarded as a legal nullum and therefore has no effect, there are, as always, exceptions to this principle, which we would like to deal with at this point.

I) The principle of silence as a legal nullity

As mentioned above, silence in response to a declaration is a legal nullity and has no effect. The declaration of a declaration of intent, i.e. the objective part, is usually set explicitly, for example by signing a contract or implied, such as by nodding at a contract offer. To this extent, implied means that a person does not expressly declare his or her will, but in the end the will is manifested in some form from the point of view of an objective observer. That this remain silent has no effect on a person, the legislature has even expressly written down in § 241 a BGB for a sale of consumer goods.

II) Silence as an explanation

Now, however, the silence can, as an exception, have explanatory power. There are several case groups to be distinguished:

1) Agreed explanatory value in the event of silence

First of all, it may be the case that the contracting parties have agreed that the other's silence has explanatory value. At this point it must be remembered that this must be possible in principle due to private autonomy.

✱ case study

A offers X his used car for sale at a price of 5,000 euros. X says to A that he would like to think about it for a week, but should A not hear from him by then, he sees the contract as concluded.

There is no apparent reason for not attaching any explanatory value to the X's silence. Good faith, taking into account customary practice and the principle of private autonomy, require that the silence be given explanatory content and, therefore, a declaration of intent is to be regarded as given in the event of silence after a week.

2) Cases regulated by law

But there are also cases in which the law attaches explanatory power to the silence of a person. In this respect, there are both regulations that feign consent when one party remains silent, and those that then feign rejection.

a) Silence as consent

For example, the silence has to be approved in §§ 416 I S. 2, 455 S. 2, 516 II S. 2, 1943 or 149 S. 2 BGB or § 362 I S. 2 HGB. In these cases, the legislature stipulates that silence should also count as consent. The list is certainly not exhaustive, but is only intended to give a few examples.

b) Silence as rejection

On the other hand, there are also norms in the law that attribute a negative effect to silence: For example, Sections 108 II sentence 2, 177 II sentence 2, 451 I sentence 2 or Article 415 II sentence 2 BGB.

III) Attention to § 151 BGB

★ Important notice

Caution is required with Section 151 of the German Civil Code (BGB). This provision stipulates that a contract can also be concluded if the recipient does not receive the acceptance of an offer. It is important that this regulation in no way waives the declaration itself, but only its Access at the recipient. This provision is therefore not a case of legally standardized silence. The explanation has to be made. Only the receipt of the declaration by the recipient is unnecessary.

IV) The commercial confirmation letter

A special case of silence as consent is the so-called commercial confirmation letter, which is always made a focus of the exam. This is a letter from a businessman to another businessman (after a minor view it is enough for the recipient to appear like a businessman) in which the content of an allegedly concluded contract is reproduced in order to preserve evidence. If the recipient does not object to this letter immediately in such a case, it is recognized that the contract was concluded with the content of the confirmation letter. In this respect, it is not a question of a legal regulation, but rather of customary law. At this point, reference should only be made briefly to the commercial confirmation letter. For a detailed description, it is recommended to read a textbook and, in particular, to work through the difference between an order confirmation and a commercial confirmation letter. These two letters should not be confused with one another.


You can also visit our other articles on the subject of declaration of intent: "Effectiveness of a declaration of intent", "Liability in a courtesy relationship", "Components of a declaration of intent", "Interpretation of a declaration of intent", "Interpretation of wills"

see also: Examination assignment of claims

Further articles on civil law can be found under the heading civil law.

The topic of this article can be deepened in a crash course at any time.