Acquiescence

What are the elements of acquiescence?

To prove acquiescence, a party must prove that

• the other party knows the facts and circumstances of the contract and their rights under the contract, and
• the other party failed to act on a contract change in a timely manner, OR
• the other party has acted in such a manner as to imply they accepted the change.

Hypothetical

Bill and Susan enter into a contract in which Bill agrees to sell Susan cogs for fifty cents each at a rate of 200 cogs a month.

They also agree that Susan will pay Bill $100 at the beginning of each month.

Five months later, Bill sends Susan only 150 cogs. Despite not receiving all 200 cogs, Susan still sends Bill the $100 and does not mention the fact that she only received 150 cogs.

Bill continues to send Susan only 150 cogs a month for the next two months, and Susan continues to send Bill the full $100, without mentioning the discrepancy in the number of cogs she received.

If Susan subsequently tries to sue Bill for breach of contract, and Bill asserts the defense of acquiescence, the court will find that Susan acquiesced to the change in the contract because she did not object to Bill sending her only 150 cogs and continued to pay Bill the full $100 every month.

Case Examples

• In Davis v. Kramer Bros. Freight Lines, 361 Mich. 371, 374, 105 N.W.2d 29, 31 (1960), the Court determined that for the material terms of a contract to be changed, both parties must consent to the change either by their actions or by failing to object to the changes in a timely manner.
• In Kohlbeck v. Wyndham Vacation Resorts, Inc., 7 F.4th 729, 733 (8th Cir. 2021), the Court found that the Plaintiff could not sue Wyndham for breach of contract because he had continued to use his vacation time share for months even though the terms of his ownership had changed prior to filing his lawsuit.

Questions to consider when evaluating acquiescence:

• Has either party objected to the changes in the contract?
• If so, how quickly did they object?
• Did the other party continue to enjoy the benefits of the contract?