CONTRACT - THE OFFER Flashcards
(23 cards)
What does “Consensus Ad Idem” mean?
“The meeting of minds”
Whether contract formed depends on an assessment of what the parties must objectively be taken to have intended.
What is the last shot doctrine?
The last set of terms communicated before performance of the contract generally prevails. This is known as the “last shot” doctrine in the battle of the forms.
[Tekdata Interconnections Ltd v Amphenol Ltd (2009).]
Who is the “offeror”?
Offeror = person who makes the offer
Who is the “offeree”?
Offeree = person to whom the offer is made
What is the “offer”?
Offer = expression of willingness to be bound on certain terms made with the intention that it will be binding as soon as it is accepted by the person to whom it is addressed.
Can an offer be made to the whole world?
Yes !
Carlill V Carbolic Smoke Ball Co (1893)
What happened in Carlill V Carbolic Smoke Ball Co (1893)?
In this case, the court held that a unilateral contract was formed when the Carbolic Smoke Ball Company advertised a £100 reward to anyone who used their product correctly and still got influenza. Mrs. Carlill met the terms and fell ill, so the court ruled in her favour.
Key Legal Principles:
- The advert was an offer, not just an invitation to treat.
- Acceptance occurred through performance (using the product as directed).
- Consideration was provided by Mrs. Carlill using the product, which helped the company.
- Intention to create legal relations was shown by the £1,000 deposit.
What should you be careful about when dealing with offers?
Statements that APPEAR to be offers!
1. an invitation to treat
2. a request for information / a supply of information
3. a counter- offer
What is an “invitation to treat”?
An invitation to treat is a statement inviting negotiation.
What happened in Fisher V Bell (1960)?
In Fisher v Bell, a shopkeeper displayed a flick knife in his shop window with a price tag. He was charged under the Offensive Weapons Act 1959 for offering it for sale.
Held:
The court ruled in favour of the shopkeeper, holding that:
- Displaying an item in a shop window is an “invitation to treat”, not a legal offer. Therefore, he had not “offered” the knife for sale under the meaning of the Act.
Legal Principle:
- An item on display is not an offer, but an invitation for customers to make an offer—a key distinction in contract law.
What happened in Partridge V Crittenden (1986)?
Mr. Partridge placed a newspaper ad selling bramblefinches, which were protected under the Protection of Birds Act 1954. He was prosecuted for “offering” them for sale.
Held:
The court ruled in Partridge’s favour, holding that:
- Advertisements are generally “invitations to treat”, not offers.
Therefore, he had not legally “offered” the birds for sale under the Act.
What is a “request for information”
Whereas an offer should show a clear willingness to enter into a contract, a request for information simply asks for more details - and intends to continue negotiating!
What happened in Harvey v Facey [1893] AC 552?
Harvey asked Facey if he would sell a property and to state the lowest price. Facey replied with the price (£900) but did not explicitly say he was willing to sell. Harvey then tried to accept and claimed a contract was formed.
Held:
The court ruled in favour of Facey, stating:
- Facey’s reply was not an offer, just a response to a request for information.
- Harvey’s telegram was the actual offer, which Facey never accepted.
- Therefore, no binding contract was formed.
Legal Principle:
A statement of price is not necessarily an offer—there must be clear intent to be bound.
What is a “counter offer”?
This is not an acceptance – but offeree suggests paying less money. Once a counter offer has been made, any pre-existing offer is made void (read: termination of offer).
What happened in Hyde v Wrench [1840] 3 Beav 334?
Wrench offered to sell his farm to Hyde for £1,000. Hyde made a counter-offer of £950, which Wrench rejected. Hyde later tried to accept the original £1,000 offer, but Wrench refused.
Held:
The court ruled in favour of Wrench, stating that:
- A counter-offer rejects and destroys the original offer.
- Once the original offer is rejected, it cannot be accepted later.
Therefore, no contract was formed.
What are the ways in which an offer can be terminated?
- Lapse of Time
- Withdrawal by the offeror - “REVOCATION”
- Rejection by the offeree - Express / Implied
- Counter-offer
- Failure of a condition
- Death of the offeror or offeree
How would “Lapse of Time” terminate an offer?
If no deadline is given, the offer lapses after a reasonable time, depending on the circumstances
What happened in Ramsgate Victoria Hotel v Montefiore (1866)?
Montefiore offered to buy shares in June, but the company didn’t accept until November. By then, Montefiore had withdrawn interest. The company sued, claiming a contract had been formed.
Held:
The court ruled in favour of Montefiore, stating:
- Offers must be accepted within a reasonable time.
- A five-month delay was unreasonable in the context of share trading.
Therefore, the offer had lapsed, and no contract was formed.
Legal Principle:
If an offer is not accepted within a reasonable time, it automatically lapses and cannot be accepted later.
How would “revocation” terminate an offer?
Once an offer has been accepted, the offeror loses the right to withdraw. Before acceptance, the offeror can withdraw the offer (REVOCATION) - terminating it!
What happened in Payne v Cave [1789] 3 Term Rep 148?
In this case, Cave made the highest bid at an auction but withdrew it before the auctioneer accepted. The question was whether a contract had been formed.
Held:
The court ruled in favour of Cave, holding that:
- A bid at an auction is an offer, not an acceptance.
- The offer can be withdrawn at any time before acceptance (i.e., before the auctioneer’s hammer falls).
Therefore, no binding contract was formed.
Legal Principle:
An offer can be revoked any time before acceptance, even in an auction setting.
How would “rejection by the offeree” terminate an offer?
The offeree clearly and directly says “no”, or the offeree acts in a way that suggests rejection (eg. counter-offer)
How would a “counter-offer” terminate an offer?
Hyde v Wrench: “A counter-offer destroys the original offer!”
How would “Failure of a condition” terminate an offer?
“I’ll sell you my bike for £200 if you collect it by Friday.”
If the offeree doesn’t show up by Friday — even if they were planning to — the condition fails, and so does the offer.
