#17254 - Offer - GDL Contract Law

An offer: “an expression of willingness to contract on specified terms made with the intention that it is to become legally binding as soon as it is accepted by the person to whom it is addresses” (Trietel)

Offer must be

• Valid (clear, certain, and addressed to offeree)

• Communicated to the Offeree

• Not rejected revoked or lapsed.

NB it can often be confusing who is the offering party, eg the vendor may be the accepting party

• Pharmaceutical Society of Great Britain v Boots Cash Chemists (Southern) Ltd [1953])

Objective view of intention and agreement

• Smith v Hughes (1871) Blackburn J: Offer of oats, D thought they were ‘old’, they were not.

  • Found in D’s favour either because oats were described as old or seller knew D wanted old oats.

  • One party may be mistaken about the subject matter of the contract, even to the extent that he would not have entered into the contract had he known the truth, but the contract remains valid.

• Rose v Pim (1953) - Plantiffs asked to acquire Moroccan horsebeans described here as feveroles. Sup-ply chain established. Eventual buyer found them not to be ferevoles.

  • Dennign J: Their agreement, as outwardly expressed, both orally and in writing, was for “horsebeans”. That is all the defendants ever committed themselves to supply; and all that they should be bound to”.

Snapping Up Cases

• Hartog v Colin & Shields (1939) - The sellers offered Argentine hare skins at a given price per pound (mistake, they meant per unit). Buyer ordered 30k.

  • Held the buyer must have been aware of the sellers’ mistake, and therefore must have been aware that the sellers’ offer did not represent their true intention.

• Chwee Kin Kong v Digilandmall.com [2004] - Emphasis on the state of mind of the would-be snappers up: buyers were said to have moved “at the dead of night” and with “indecent haste”

• Centrovincial Estates v Merchant Investors (1983) – Negotiations over an existing lease, the landlords’ solicitors wrote to the lessees proposing that the “current market rental value” of the property should be contractually agreed to be 65,000.

  • Later realised they meant 126,000. Summary judgement found in favour of lesses.

  • Landlords conceded that the case would need to proceed to full trial for it to be established on the evidence whether the lessees did or did not know that a mistake was being made (hence summary judgement against them).

Invitations to Treat

• Preliminary discussions are known as “invitations to treat”, and may well take the form of enquiries, obviously evincing no intention to be bound

• Partridge v Crittenden [1968] – Defendant had placed an advertisement in the periodical “Cage and Aviary Birds”, reading “Bramblefinch cocks, Bramblefinch hens 25 s each”. Prosecuted as illegal to sell such birds.

  • High Court quashed the conviction. The advertisement was merely an invitation to treat, not an offer to sell. In the eye of contract law it is the would-be purchaser here who makes an offer to buy

• Fisher v Bell [1961] – A shopkeeper displayed a flick knife in the window of his shop with a ticket behind it which read “Ejector knife- 4s”. Illegal to sell such knives

  • Held mere invitation to treat

• Grainger & Sons v Gough (Surveyor of Taxes) [1896] – House of Lords to decide whether an offer was made when a price list of wines was sent out by a wine merchant.

  • It was held that the list was merely an invitation to treat, not an offer.

  • Commercially sound - merchants must be able to alert prospective purchasers to their presence in the market without the risk of ending up bound to perform an impossible multiplicity of contracts from a limited stock.

  • Obiter stated that a hypothetical advert from the manufacturer (who is capable of meeting any demand) did constitute an offer.

• Pharmaceutical Society of Great Britain v Boots [1953] – Unsuccessfully argued that taking drugs from the shelf was the point at which the sale was concluded.

  • Held the offer occurs when the customer brings the goods to the till.

  • Commercially sound judgement.

• Thornton v Shoe Lane Parking [1971] – A motorist drove up to the entrance of a car-park. As he did so, a light changed from red to green, and a machine provided a ticket which the motorist took before driving on.

  • Lord Denning M.R. explained that the ticket came after the contract was already complete.

• Chapelton v Barry Urban District Council [1940] – The Council let out deck chairs on a beach. Tickets could be obtained from an attendant. The plaintiff sat on a deck chair, which gave way and caused him injury.

  • Council sought to defend itself by reference to exclusionary words printed on the ticket available from the attendant.

  • The court regarded the pile of deck chairs as the offer and the act of sitting down on one of them as the acceptance as that a customer might sit for an hour or more before the attendant came round for the money.

In Unilateral Contracts.

• Carlill v Carbolic Smoke Ball Company [1893] – D advertised a reward of 100 would be paid to any person who caught influenza despite using the smoke ball as directed. Claimed to have deposited 1000 with their bankers “shewing our sincerity in this matter”. Plaintiff caught flu.

  • Held to be a unilateral contract.

    • Here the acceptance expected is not to take the form of assent, but of a specified action

    • There is no agreement reached.

    • Still more strikingly, the offeree is never bound to the offeror, and seems to be able to desist from performance at will.

In Contracts Involving Land

• Courts traditionally regard land as unique and not so readily traded, therefore rules of offer and acceptance applied with caution

• Harvey v Facey [1893] – Series of telegrams:

  • H to F: “Will you sell us Bumper Hall Pen? Telegraph lowest cash price”.

  • F to H: “Lowest price for Bumper Hall Pen 900”.

  • H to F: purports to accept offer.

  • Privy Council held that F had answered only one of the two questions in the first telegram, therefore no offer.

• Clifton v Palumbo [1944] – Plantiff: “I…am prepared to offer you or your nominee my Lyneham estate for 600,000.

  • Lord Greene: remote possibility that parties binding themselves into so large a transaction couched in such terms

• Gibson v Manchester City Council [1978] – Council sent Mr Gibson a letter stating that “the corporation may be prepared to sell the house to you at the purchase price of 2725…”.

  • HoL held no more than an invitation to treat.

  • Lord Denning in Appeals argued one need not look for a specific moment of offer and acceptance. Lord Diplock in HoL disagreed.

    • Mulcahy and Tillotson: “Denning is looking for the presence of a cake whereas those adopting a more formalistic analysis [Diplock] have looked for the ingredients of the cake and whether they have been put together in a “correct” sequence”.

Auctions

• Based on Unilateral Contract model

• Payne v Cave (1789) – Cave bid at an auction but alter changed his mind and withdrew his bid before the auctioneer put his hammer down.

  • The placing of a bid at auction is the making of an offer, and the fall of the auctioneer’s hammer is the acceptance.

  • This analysis is now statutorily codified.

• Warlow v Harrison (1859) – Three horses were advertised as for sale “without reserve”.

  • Plaintiff bid 60guineas, current owner bid 61, winning. Legally impossible to sell to current owner.

  • The plaintiff claimed that the horse was his since he had been the highest bona fide bidder.

  • It is held (at least by a majority of the judges involved, and obiter) that the advertisement of the sale as being “...