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1 Offer

Definition

1.1 An expression of willingness to be bound on specific terms.

1.2 Must be certain.

1.3 Only the person or a member of the class to whom the offer has been made can accept it.

1.4 The offer must be open for acceptance at the time that acceptance is purported to occur.

Invitations to treat

1.5 Offers must be distinguished from invitations to treat.

(a) This is inviting someone to make an offer or commence negotiations.

(b) It cannot be accepted.

(c) Examples of invitations to treat:

(i) items displayed on shelves: Pharmaceutical Society of G.B. v Boots Cash Chemists.

(ii) items in shop windows: Fisher v Bell.

(iii) usually adverts in newspapers: Partridge v Crittenden.

Note however offers made to the whole world: Carlill v Carbolic Smoke Ball Co.

(iv) auction notices.

(v) prospectuses.

(vi) mail order catalogues

1.6 Also be careful with other expressions that fall short of being 'offers' eg

(i) advertisers puff or boasts normally fall short of being promises or offers

(ii) a response to a request for information is not normally an offer

(iii) a declaration of intention to sell is not normally an offer.

1.7 Termination of an Offer

(a) Rejection: of an offer or refusal to accept.

(b) Counter?offer: Hyde v Wrench.

A counter offer is simply a new offer.

(c) Conditional acceptance: Neale v Merrett. Contrast requests for information : Stevenson v McLean.

A conditional acceptance is an attempt to introduce new terms into the offer and as such cannot be an acceptance.

(d) Lapse of time: (an express or implied period) will terminate an offer: Ramsgate Hotel v Montefiore.

(e) Revocation of an offer:

(i) is effective any time before acceptance occurs Routledge v Grant;

(ii) as long as it is actually communicated: Byrne v Van Tienhoven;

(iii) can be communicated via a reliable third party: Dickinson v Dodds;

(f) Death.

2 Acceptance

Definition

2.1 (a) An unconditional assent to all the terms of the offer: Neale v Merrett

(b) It is important to identify a clear offer, and unconditional acceptance.

Negotiations may constitute a series of counter offers, each party trying to impose their standard terms on the contract: "the battle of the forms." Hence if faced with this type of question ensure that you identify what is happening at each stage of the negotiations until you have a clear offer and acceptance.

(c) Acceptance may only be made by authorised person: (compare revocation).

(d) Must be made whilst the offer is still open ie:

(i) before revocation

(ii) before any time limit specified has expired

(iii) before the offeree's death

Rules of acceptance

2.2 (a) It must be communicated by positive words or deeds hence it cannot be imposed by silence but may be inferred by conduct.

(b) If method of communication is mandatory then no other method will be legally effective: Holwell Securities v Hughes.

(c) If no mandatory method is specified it should still be made in the way specified by the offeror, but an equally speedy method may suffice: Yates v Pulleyn.

Instantaneous methods of communication

2.3 However, if modern instantaneous methods of communication are used e.g. telephone, faxes, email etc, communication must be received; Entores v Miles Far East Corporation.

Exceptions to the communication rule

2.4 (a) Where the need for communication is waived: Carlill v Carbolic Smoke Ball Co.

(Be careful this does not negate the need for acceptance itself.)

(b) Where the postal rule applies acceptance will occur at the moment of posting: Adams v Lindsell, Household Fire Insurance v Grant.

Conditions:

(i) Letter must be properly addressed and stamped;

(ii) put into the post in the normal way;

(iii) the postal rule will not have been excluded i.e. it must be in contemplation of both parties that acceptance will take place by post.

Effect:

We may have a 'communication' of acceptance without receipt.