Contracts implied-in-fact like a form of will expression

This confirms that it does not matter how we perceive unequivocal actions when performing them - such as pressing the buttons to order coffee and paying and collecting it.

Violation of this concept could lead to legal anarchy. Imagine visiting a restaurant, placing an order and then claiming ignorance when the waiter brings you the bill, saying you did not know you had to pay for the food.

Private international law also uses the concept of estoppel, which serves as a mechanism for applying estoppel in the norms of the Vienna Convention on the Law of Treaties and the Vienna Convention on the Law of Treaties Between States and International Organizations or Between International Organizations is used by the International Court of Justice. The court relied on estoppel during the conflict over the Preah Vihear temple. It rejected Thailand's claim, which referred to the incorrect map establishing the border between states in the temple area. The reason for refusing the allegations was that for 15 years, Thailand had not made a claim and enjoyed the benefits that this gave it. Thailand took advantage of the situation and made no demands. Thus, Thailand's actions confirmed the absence of pretensions. See: `UN Court Rules for Cambodia in Preah Vihear Temple Dispute With Thailand' (UN News, 11 November 2013) <https://news.un.org/ en/story/2013/11/455062> accessed 07 January 2024.

Estoppel mandates compliance with obligations stemming from specific actions and limits the possibility of renouncing one's actions and intentions. Unlike civil law, reliance-based estoppels are recognised in case law, encompassing various forms such as (1) by the representation of fact, where one person asserts the truth of a set of facts to another; promissory estoppel, where one person makes a promise to another, but there is no enforceable contract; (2) and proprietary estoppel, where the parties are litigating the title to land. Lord Mackay, Halsbury's Laws of England: Easements, Equity, Estoppel, vol 16(2) (4th ed, LexisNexis 2003).

Estoppel and contracts implied in fact are different legal institutions. Estoppel operates as a bar or impediment raised by the law which precludes a man from alleging or from denying a certain fact or state of facts, in consequence of his previous allegation or denial conduct or admission, or consequence of final adjudication of the matter in a court of law. `ESTOPPEL Definition & Meaning' in Black's Law Dictionary (2nd edn, Lawbook Exchange Ltd 1995) <https://thelawdictionary.org/estoppel> accessed 03 January 2024. While implied-in-fact contracts are a way to express one's will when seeking to conclude an agreement.

However, both estoppel and implied-in-fact contracts equally recognise the occurrence of obligations arising from specific actions.

Thus, estoppel and de facto contracts give rise to obligations arising from the performance of specific actions but differ in the legal basis for such obligations - a contract or other legal fact established by law.

The prototype of implied-in-fact contracts can be traced back to verbal agreements in Roman law, where contracts were concluded by pronouncing certain words. Several verbal contracts were enshrined in the Institutes of Gaius, including the stipulation, the freedman's promise to the patron, and the dowry obligation. Verbal contracts had a question-answer form and involved specific phrases. Gaius, The Institutes of Gaius (Bloomsbury 3PL 1997).

By drawing an analogy between verbal and implied-in-fact contracts, we see that the basis for recognising the concluded agreement is a realisation of specific actions. This similarity features in the stipulation favouring the third person, where the basis for recognising the concluded agreement lies in the realisation of specific actions.

As SE. Abdel-Wahab and J. Brinsley said that the concept of transaction in which the contracting parties contemplate that their agreement should benefit a third person whom they have designated assumes that neither party has the mandate to stipulate in the name of a third person; it is a contract made in favour of a third person. Salah-Eldin Abdel-Wahab and John H Brinsley, `The Stipulation for a Third Person in Egyptian Law' (1961) 10(1/2) The American Journal of Comparative Law 76, doi:10.1093/ajcl/10.1-2.76.

Today, we can see the manifestation of this construction when a customer buys goods in a store and then leaves them in a special charity box. Any person can take a product from the charity box free of charge. This practice can qualify as a contract of donation, charity, or third-party beneficiary contract. We can consider such a situation as an implied-in-fact contract. For example, when a third-party beneficiary takes products from a charity box, he or she enters a legal relationship. The following legal relationship can be qualified as a gift or as exercising a third-party beneficiary's right to a product paid for in advance. Otherwise, we would have to qualify such actions as theft or godsend. Qualifying this situation as an ordinary bilateral sales contract is onerous. In particular, this is due to the condition that the store stores the wares and the obligation to hand over the goods at the request of a third party. Here, we can see an interesting legal structure.

Let us consider another example within the restaurant industry, showcasing a concept known as “Pay-it-Forward”. Here is how it works: patrons can visit a coffee shop and pay for the coffee, which a third party can then claim. Some hospitality establishments have a signboard with a “pending meals” list. When a customer points to the selected position on the signboard to receive it, they are taking conclusive action. In this scenario, the visitor effectively concludes a contract without using the verbal or written form.

We agree with A. Zysov that the evolution of common law is distinctly different and reflects the stages or layers that constitute the history of the common law of contract. Two old forms of action, debt and assumpsit, are directly relevant to our inquiry as they are the origin of modern contract law. Aron Zysow, `The Problem of Offer and Acceptance: A Study of Implied-in-Fact Contracts in Islamic Law and the Common Law' (1985) 34(1) Cleveland State Law Review 69.

While common law contains many peculiarities, as seen above, implied-in-fact contracts have fundamental features derived from Roman law. At the core of all the described institutions lies human behaviour, from which the desire of the person to agree emerges. The analysis conducted paves the way for a doctrinal understanding of implied contracts.

The United States Supreme Court has defined an agreement implied as based on a deal and reconciliation of views and interests. This may not be embodied in a classic contract but is understood through the parties' conduct, confirming their unequivocal understanding. See Baltimore & Ohio R Co v United States [1923] 261 US 592 <https://supreme.justia.com/ cases/federal/us/261/592/> accessed 07 January 2024. Under the traditional conception, a contract implied in fact is drawn out by the trier of fact when circumstances warrant the conclusion, primarily from the parties' conduct, that the legal equivalent of mutual consent exists. See JC Pitman & Sons, Inc v United States [1963] 161 Ct Cl 701, 317 F.2d 366 <https://caselaw.vlex.com/vid/891591044> accessed 07 January 2024. So, implied-in-fact contracts are based on behaviour that can be interpreted as an unambiguous expression of will within the limits of proper authority.

W. Boyd III and R. Huffman delineated several characteristics that typify implied-in-fact contracts: 1) the absence of necessity to express an oral or written manifestation of consent; 2) the absence of express offer or acceptance; 3) the necessary elements of the agreement are inferred from the parties' conduct in light of the surrounding circumstances; 4) no requirement to demonstrate mutuality of intent or mutual consent. Willard L Boyd III and Robert K Huffman, `Treatment of Implied-in-Law and Implied-in-Fact Contracts and Promissory Estoppel in the United States Claims Court' (1991) 40(3) The Catholic University Law Review 605.

A similar position can be found in philosophy. T. Dougherty argues that a private intention is insufficient for morally valid consent, which always requires public behaviour in the form of communication through nonverbal behaviour in the case of high-stakes consent. Tom Dougherty, `Yes Means Yes: Consent as Communication' (2015) 43(3) Philosophy & Public Affairs 224, doi:10.1111/papa.12059.

Combining the ideas and doctrines of philosophy and law, we conclude that for the conclusion of an agreement, only committed actions matter, and not the private intention, motive or desire. If somebody wants to agree but does not take appropriate actions, the expression of will cannot be considered an acceptance or an offer. The contract is considered completed only after the will expression of all parties. The contract is considered completed only after the will expression of all parties, but the implied-in-fact contract does not need written or verbal consent. A contract implied in fact demonstrates the parties' will by performing specific actions (raising a hand, pressing a button, etc.). Conclusive actions are an active manifestation of the will and express the intentions and consent of the parties.

A conclusive contract is an analogue of an implied-in-fact contract in Continental law. Some academics define a conclusive contract as embodying a person's will to agree. OV Dzera and HS Kuznjecova (eds), Civil Law of Ukraine: Textbook, vol 1 (Yurinkom Inter 2005) 633. But, this definition does not convey the specifics of this contract. It is correct to say that a conclusive contract involves agreeing to the parties by taking conclusive actions in which matters to us is not the motive itself and the party's intentions but whether we can infer a specific intention. We can conclude that the will to enter the contract depends on the party's actions. When a passenger boards a bus, it does not matter to us whether he wants to conclude a contract of carriage. From his actions, we conclude that he intends to enter the contract. This action is enough to create a legal relationship. This shows that conclusive actions are the main feature of conclusive contracts.

The law does not directly define the conclusive actions and conclusive contracts. However, the possibility of concluding a contract using conclusive actions is provided for in the legislation of many countries. Article 205 of the Civil Code of Ukraine establishes the form of transaction and ways of intention expressing: 1) A transaction can be effected in either verbal or written form; 2) A transaction for which the law does not prescribe a mandatory written form shall be considered concluded, provided the behaviour of the parties witnesses their intention before occurrence of the appropriate legal consequences; 3) In cases established by an agreement or the law, the intention of the party to conclude a transaction may be expressed by its silence. Civil Code of Ukraine (n 7) art 205.

The above allows us to assert that the contract can be concluded in different forms due to the various ways of expressing an intention. We can conclude the contract using conclusive actions because they reflect the behaviour of the parties, which proves their will before the onset of the relevant legal consequences.

Silence and conclusive actions are not identical concepts. While silence is not an active action, it must be seen in specific contexts. For example, if A says, `Speak up now if you have any objection to this marriage' and B remains silent, this seems to imply the absence of an intent to object. At the same time, in economic activity, `silence may be equivalent to a declaration of consent to an action, request or proposal that the silent person has noticed or is addressed to him or her'. Commercial Code of Germany `Handelsgesetzbuch-HGB' (as amended of 21 December 2023) <https://www.gesetze-im-internet.de/hgb/index.html> accessed 30 November 2023.

Conclusive action is an active expression of will; silence is passive and does not mean automatic acceptance.

Courts in different countries confirm this idea. In the resolution of the Supreme Court of Ukraine, it is stated that acceptance can also occur through tacit consent and the form of certain behavioural acts (so-called conclusive actions) of the transactions' party (for example, accepting payment for goods for sales contracts). Case of no 3-59гс14 (Supreme Court of Ukraine, 19 August 2014) <https://reyestr.court.gov.ua/ Review/40289257> accessed 07 January 2024.

The conclusive actions are the way of accepting the offer, the form of the contract and the method of expressing will. Conclusive actions are characterised by dynamic behaviour in the form of specific measures aimed at the desire to agree. Conclusive actions are the basis for concluding conclusive contracts and implied-in-fact contracts. However, conclusive actions do not have a direct normative definition, and the practice of their application creates legal problems. What has been said determines the relevance of understanding the specifics of expressing the parties' will in the implied-in-fact contract.

The conclusion of contracts requires free expression of will, which is based on the autonomy of the parties' will. This autonomy can be manifested in the performance of conclusive actions, serving as a form of acceptance of an offer and expression of will. As noted by O. Green, “accepting an offer includes verbal, written, silent and conclusive actions.” Oleksandr Green, Contracts in the Civil Law of Ukraine: Album of Schemes (Pub Breza AE 2012) 41. Although several ways exist to accept an offer, contracts are characterised by conclusive actions.

The conscious expression of will is a prerequisite to conclude a contract. Therefore, a person must understand that he is entering a legal relationship. On this issue, there is a particular problem with conclusive actions. In an implied contract, acceptance may be expressly communicated or inferred from the conduct of a party. Still, a quasi-contract refers to situations in which a defendant is bound as if there were a contract.

The study of quasi-contracts is not the focus of this paper. But we want to support the idea that, in some cases, we associate the emergence of legal relations under the contract implied in fact with the fact of taking conclusive actions. Awareness of the meaning of one's actions may not impact concluding a contract. In this situation, it is more relevant to talk about the “protestatio facto contraria non-valet” a Roman law norm, according to which an expressed reservation is invalid when contradicting one's own behaviour. Werner Flume, Allgemeiner Teil des Burgerlichen Rechts (3 aufl, Springer 1979).

Two well-known cases confirm this. The first example is the famous case of the Trier wine auction. This fictional legal doctrinal case illustrates in detail the legal consequences of unconscious expression of will. H. Isay offered the case when an auction visitor saw a friend and greeted him with a raised hand. Traditionally, at auctions, raising your hand means making a bid. Because of this, the auctioneer fixed a bid per visitor and demanded payment from him. The main argument of the case was that the visitor did not know about the internal rules of the auction, and his actions were not an expression of the will to conclude a contract. Hermann Isay, Die Willenserklarung im Thatbestande des Rechtsgeschafts nach dem Burgerlichen Gesetzbuch fur das Deutsche Reich (G Fischer 1899).

There are two main points of view regarding this situation among lawyers. C.-W. Canaris emphasised, “that this situation does not express the will because it violates private autonomy.” Claus-Wilhelm Canaris, `BGH, 07-06-1984 - IX ZR 66/83: Ohne Erklarungsbewufitsein erfolgte tatsachliche Mitteilung als Willenserklarung' (1984) 40 Neue Juristische Wochenschrift 2279. However, J. Ellenberger noted “that we should focus on external behaviour, even if it does not coincide with the person's motives.” Jurgen Ellenberger, `Einfuhrung' in Palandt, Kommentar zum BGB mit Nebengesetzen: Inkl WEGReform und COVID-19-Anderungen, Rechtsstand: 15.10.2020 (80 aufl, CH Beck 2021) 1.

It is essential to acknowledge that a person can create legal consequences by his actions. The interpretation of such scenarios hinges on a person's ability to familiarise himself with the auction rules. Despite the lack of awareness of the declaration, there is a declaration of choice if the declarant, exercising the necessary care in transactions, could have avoided having his action interpreted as a declaration of intent in ordinary practice and if the recipient understood it as a declaration of intent. Erfordernis des Erklarungsbewusstseins ("Sparkassenfall") [1984] BGHZ 91, 324