Is Silence consent…Or Not?

Two months ago, Morenike Adio made an order for Ankara (Asoebi) from FabricX for her sister’s wedding, which was last month and receipt of order was confirmed. Delivery was due one month after her order and not realising that the order was not binding until accepted by the seller, Morenike made a request for her order to be shipped. At this time, she was notified that the order had been rejected. This was only a few days to her sister’s wedding. Of course she was shocked and livid!

While FabricX could have informed Morenike about the rejection, Morenike on her part could have checked up on the company’s operations and followed through with enquiries. Nonetheless, the court held that the company had a duty to speak and their silence amounted to acceptance.

Okay….I do understand a number of principles about silence; at least the principle that says ‘SILENCE IS GOLDEN’ and another that establishes Silence as a true friend who never betrays. However, I am also a firm believer of sayings like those of Harvey Fierstein, which urges that we “Never allow ourselves to be made victims….”  And this is because I do not think that silence is always ‘GOLDEN’.

As someone rightly said, if silence is the answer to a proposition, then the answer is unknown.

The principle ‘Qui Tacet Consentire’ which is translated to mean ‘Silence gives consent’ or that ‘The silence of a party implies consent,’ is not at all unfounded, it is a maxim which proposes that people assume your lack of response, to be an unspoken approval of your action or otherwise.

While this principle is not accepted in English law, it is a theory of Latin origin and accepted in parts of the world as a concept of social interaction. Indeed such principles and axioms are general propositions flowing from abstract reason; and the reasoning here is that if you do not disagree, then you automatically have agreed, which also means that keeping quiet is the same as giving permission.

WELL… DOES IT?

May be, maybe not. Silence can sometimes be expressive, because communication involves not only spoken, but unspoken words. While plain and unassuming silence may not be considered consent in contractual terms; the reverse is the case where the silent person is bound in good faith to explain himself, in which case, silence gives consent.

Silence can be classified into various types. There is the disapproving silence, the appreciative silence, the cold silence, the reverential silence, the bewildered silence, the approving silence/consenting silence and the fearful silence.

For an approving silence, it is presumed that a silent witness is an approving party to what he observes, through his silence. In the same way, ordinary German citizens were assumed to be party to Nazi atrocities by their silence.

Also, in a political arena, silence may quite easily be construed to mean an approved consent, with the belief that one who finds a particular method of governance impracticable is expected to speak up or else be assumed agreeable.

An instance of fearful silence, is the silence of a rape victim during the act of being raped, this does not in any way imply consent; and brings us to the issue of PRESUMED V. INFORMED consent.

Is it always alright to presume consent with silence? Are there genuine instances where silence is definitely consent?

Yes there are. Upfront, here are a few basic instances. When the Priest/Reverend says ‘speak now or forever hold your peace’, Silence in this case is definitely consent for the ongoing marriage ceremony. Likewise, the words, “unless there are any objections” is also an express call for silence.

These notwithstanding, I think one should be fully conscious of the environment and circumstances in which we choose to maintain that golden rule that says “SILENCE IS GOLDEN,” because several presumptions and deductions can be drawn from silence.

It is definitely not golden when unfavourable assumptions are drawn from our silent action or expressions, particularly when one is being charged with a crime.

Failing to mention a fact during questioning, only to rely on the same facts in court can be damaging to your case, and so is failing to speak on account of stolen items found in your possession.

As with everything else in life, balance is the key. There are times when it is fundamental to be silent. Globally, the right to remain silent is a legal right recognised, explicitly or by convention, in many of the world’s legal systems.

RIGHT TO SILENCE

Silence indeed does have the backing of the law. A person’s right to remain silent is a fundamental right. Section 35(2) of the 1999 Constitution provides that, “any person who is arrested or detained shall have the right to remain silent or avoid answering any question until after consultation with a legal practitioner or any other person of his choice.”

Also, in England and Wales the Right to Silence is the protection given to a person during criminal proceedings from adverse consequences of remaining silent. It is sometimes referred to as the privilege against self-incrimination.

In the United States, citizens also have a right and legal protection against self-incrimination in The Fifth Amendment (Amendment V).

The Fifth Amendment to the United States Constitution is part of the Bill of Rights that protects individuals from being forced to incriminate themselves, by either refusing to answer a question or otherwise giving testimony against themselves. What this means is that based on the implication of the question, a responsive answer or an explanation of why it cannot be answered might be dangerous. Thus the individual pleads the fifth and remains silent.

The right to remain silent in America was asserted at grand jury or congressional hearings in the 1950s, when witnesses testifying before the House Committee on Un-American Activities or the Senate Internal Security Subcommittee claimed the right in response to questions concerning their alleged membership in the Communist Party.

CAVEAT

The next time we choose to be silent, we must ensure that we are fully aware and conscious of our environment and the circumstances; be it contractual or private affairs.

As we exercise our right to silent at any given, we must be certain that it is the right occasion and circumstance, because as we see above, our silence can indeed bring unnecessary and avoidable inferences that could be harmful. Please speak when you ought to.

Remember again, qui tacet consentire videtur (he who is silent is taken to agree)!

THEODORA KIO-LAWSON