The relevant language here is, "The said
option shall be exercised by notice in writing to the intending vendor
...," a very common phrase in an option agreement. There is, of course,
nothing in that phrase to suggest that the notification to the defendant could
not be made by post. But the requirement of
"notice ... to," in my judgment, is language which should be taken
expressly to assert the ordinary situation in law that acceptance requires to
be communicated or notified to the offeror, and is inconsistent with the theory
that acceptance can be constituted by the act of posting, referred to by Anson's
Law of Contract, 23rd ed. (1969), p. 47. as "acceptance without
notification."
It
is of course true that the instrument could have been differently worded. An
option to purchase within a period given for value has the characteristic of an
offer that cannot be withdrawn. The instrument might have said "The offer
constituted by this option may be accepted in writing within six months:
"in which case no doubt the posting would have sufficed to form the
contract. But that language was not used, and, as indicated, in my judgment,
the language used prevents that legal outcome. Under this head of the case
hypothetical problems were canvassed to suggest difficulties in the way of that
conclusion. What if the letter had been delivered through the letter-box of the
house in due time, but the defendant had either deliberately or fortuitously
not been there to receive it before the option period expired? This does not
persuade me that the artificial posting rule is here applicable. The answer
might well be that in the circumstances the defendant had impliedly invited
communication by use of an orifice in his front door designed to receive
communications.
参考资料:ANU Law School 毕业