Acceptance

Question 1

Butler Machine Tool Co. v. Ex-cell-o Corp. [1979] 1 W.L.R. 401, [1979] 1 All E.R. 965 (C.A.)
(Battle of Forms)

Answer 1

Rules:
- In a battle of forms, all should be read and come to a harmonious decision based upon the parties’ mutual intent.
- Any terms that are not brought explicitly to the other party’s attention will not be part of mutual intent and fall off the table but if it is brought to attention may be part of deal considering intent
- If a term such as a “price variation clause” is important then it should be brought up, otherwise you are accepting someone else’s form as superior. You can’t sneak terms/conditions into correspondence in a battle of forms.

Conclusion:
- Judgment in favour of the buyer/offeree, price clause was not included in the end.

Question 2

Tywood Industries Ltd. v. St. Anne-Nackawic Pulp & Paper Co. Ltd. (1979), 100 D.L.R. (3d) 374 (Ont. H.C.)
(Battle Of Forms)

issues:
- Have the parties agreed to arbitration?
- Is the arbitration clause part of the contract?

Answer 2

Rules:
- Mutual intentions to do business trump any written terms and conditions in contracts (Butler).
- When disagreeing about the terms/conditions in a battle of forms, anything not brought up as important will not be included in the contract.
- If there is valid agreement of arbitration then you cannot sue in court, but when it isn’t communicated properly then you cannot bring it up as important later.

Question 3

Livingstone v. Evans [1925] 3 W.W.R. 453, [1925] 4 D.L.R 769 (Alta. S.C.)
(Acceptance)

Issues:
- Was there acceptance?

Answer 3

Rules:
- An original offer still stands for acceptance if it is not communicated that it was rejected.
- Renewal of an original offer allows for acceptance of this original offer.

Analysis:
-D’s letter “cannot reduce price” was a renewal of the original offer, giving P the right to bind D to the contract by his subsequent acceptance via telegram.
-There was a binding contract between D and P, if P is ok with accepting D’s original offer, since it was never terminated and therefore, stood for acceptance.
-“Cannot reduce price” means that D rejects P’s counter-offer, but the original offer still stands for acceptance from P.
-Acceptance occurs when the buyer/offeree provides a deposit.
-With P fulfilling the performance of acceptance in providng a deposit , D is bound to his promise of selling the house.