ЋУТАЊЕ КАО ИЗЈАВА ВОЉЕ У ПРАВНОМ ПРОМЕТУ
KEEPING SILENT AS A STATEMENT OF INTENT IN LEGAL TRANSACTIONS

Summary/Abstract: The one keeping silent does not state anything. This is a generally accepted rule in all legal systems. However, there are exceptions. The author treats the theoretical solutions and analyzes typical situations where keeping silent has a legal effect in entering agreement. These are: (1) preliminary agreement between the parties; (2) duty of taking stand of specific categories of persons; (3) duty to take stand at concluding specific contracts; (4) duty to take stand created out of an earlier engagement between the parties; (5) an offer requested by the one receiving the offer; (6) final offer made by a party after the negotiations; (7) keeping silent as the element of acceptance of a counter-offer; (8) late acceptance; (9) the effect of the fact of keeping silent at entering an agreement on the ground of generally recognized terms of doing business, and (10) confirmatory letters. The author concludes that courts in all countries interpret in a rather narrow way the exceptions form the rule that keeping silent can not amount to a statement of intent. Even in cases mentioned above, the courts are reluctant to automatically exclude the general rule. Decisions of the courts recognizing legal effect of keeping silent are based on a variety of factors in favour of such solution. The courts are influenced also by some general factors, such as commercial character of contractual relations, justified reliability of the party invoking the contract, the importance of acquired or abolished right, as well as its nature, unjust enrichment and the criterion of fair dealing and good faith.

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