The function of silence in legal negotia

Abstract

The purpose of this thesis is to throw some light on the relevance of silence in the formation and conclusion of contracts. It is divided into two parts: the first dealing with the importance of silence in the conclusion of contracts, the other dealing with its importance in the formation of con- tracts. This order is adopted because it is intended to show that the principles of good faith which govern the very conclusion of contracts, should be transported and given effective application in the precontractual stage, leading to a general principle that it is the duty of parties to act throughout in good faith the one towards the other. Infact, the idea of this thesis is to show that notwithstanding the fact that of itself silence is equivocal and ambiguous, from which ono can hardly discern an intention one way or the other, still, having regard to the fact that it is the duty of either party to act in good faith and make clear his stand on a particular point, the law desumes certain effects from such silence in order to protect the legitimate expectation of the other party or as a penalty for his failure to act in accordance with good faith. Work on this thesis has necessitated research in all branches of the law and as a result, certain areas had per force to be dealth with succinctly. Certain topics, which are considered to be of particular importance, are dealt with in more detail than others. It is not the purpose of this work to deal with each concrete application of silence, but to show how principles of good faith should require the Courts to give more effect to negative behavior of contracting parties and thus protect the trust and expectation which individuals have in the stability and consistency of the juridical order.