It so often happens that we receive important correspondence but simply forget to respond to it. Your inaction or failure to respond in circumstances where a firm repudiation is required could be detrimental. In fact, our courts have held that your silence could be construed as acquiescence.
This issue was dealt with quite a while ago in the case of McWilliams v First Consolidated Holdings[1] and still remains relevant today.
In the McWilliams case, the Appellate Division confirmed that McWilliams’ silence and inaction after receipt of a letter recording that an agreement had been concluded with First Consolidated Holdings based on terms and conditions set out in an unsigned draft agreement attached thereto, which McWilliams failed to respond to, justified an inference adverse to him that an oral agreement was proved.
The Appellate Division highlighted that:
- Silence “Quiescence” is not necessarily “acquiescence” and indicated that a party's failure to reply to a letter asserting the existence of an obligation owed by such party to the writer does not always justify an inference that the assertion was accepted as the truth.
- However, in general, when according to ordinary commercial practice and human expectation, a firm repudiation of such an assertion would be the norm if it was not accepted as correct, such party's silence and inaction, unless satisfactorily explained, may be taken to constitute an admission by him of the truth of the assertion, or at least will be an important factor telling against him in the assessment of the probabilities and in the final determination of the dispute.
- Additionally, an adverse inference will more readily be drawn when an unchallenged assertion is preceded by correspondence or negotiations between the parties relative to the subject matter of the assertion.
Consequently, remaining silent and taking no action carries with it great risk when a firm repudiation is normally required. Inert behaviour can inadvertently amount to an admission of the truth of an assertion or at the very least could be a determining factor in a dispute.
Companies and individuals should be mindful of this danger and should take the prudent step to respond and take action when action is necessary.
[1] 1982 (2) SA 1 (A).
