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Flashcards in Responses to Offers Deck (27):
1

When does offer bind?

When accepted - then they are ad idem. Otherwise no consideration has moved between parties.

2

Counter-offer?

Proposes terms conflicting with those of offeror. Ends original offer, but can be accepted itself.

3

Hyde v Wrench (1840)

FACTS: Action for SPerf. Def offered to sell farm for £1000. Pl offered £950. Def refused. Pl tried to accept old offer of £1000. HELD: no concluded contract of sale - proposal to buy for £950 was CO, terminated original offer.

But Denning, AC in Gibson? While buyer/seller in agreement here, however close parties came to A, didn't agree.

4

Stevenson, Jacques & Co v McLean (1880)

FACTS: MCL sent offer re iron warrants, 40 s a ton. S replied re delivery times. McL then sold to 3rd party. S accepted original offer. HELD - no CO, so later telegram was acceptance of original offer.

Form/substance of S's response: Lush J - "There is nothing specific by way of offer or rejection, but a mere inquiry, which should have been answered and not treated as a rejection of the offer”.

Context allowed offer to stand until the end of the day.

5

Distinguishing between CO and request for info?

Check whether is a reasonable way of describing. CO doesn't fall short of acceptance, but rejects original offer, terminating it.

6

Gibson v Manchester City Council (1978) - CO?

Re that price of house should be lower to take account of need for repairs?

AC - Geoffrey Lane LJ - dissent - was a counter-offer.

But HL - Edmund Davies - "Explores possibility of lowering price. Like Stevenson v McLean, not Hyde v Wrench."

7

Battle of the forms?

Where parties exchange paperwork which constitutes dispute over whose terms govern the deal.

8

BRS v Arthur Crutchley & Co (1968)

FACTS: Pl lorry stolen when stored at Def's warehouse. Which conditions? Def's had limitation to £800 p ton of goods. Contract formed when Pl driver brought delivery note to Def's office: "all goods carried on Pl's conditions of carriage." Def's stamped note with "received under AVC conditions." This prevailed.

Giving of note is offer - stamping was a counter-offer, because of discrepancy between two terms. Acceptance where driver drives lorry into warehouse - by conduct.

General principle - last shot prevails.

9

Butler Machine Tool Co Ltd v Ex-Cell-O Corporation Ltd (1979

FACTS: Sellers provided quoted price for delivery in 10 months. Quote (offer) were clauses including price escalation provision, to allow them to demand increased price if production costs increased, and "all orders are accepted only upon and subject to the terms set out in our quotation and the following conditions. These terms and conditions shall prevail over any terms and conditions in the buyer’s order"

Buyers ordered, on their own Ts, with tear off slip to be returned. Sellers signed, returned. Then tried to increase price. AC - buyer's terms governed.

CO - all 3 judges of AC differed from CFI - buyers order so materially different from sellers offer that couldn't be construed as acceptance of it, but a counter-offer which terminated it.

But material difference not required - by stating their terms prevail it ran counter to seller's offer anyway.

10

Tekdata Interconnections Ltd v Amphenol Ltd (2009)

Facts: Long biz relationship. T claimed bought on their terms, complained goods were late and faulty. A claimed their Ts governed, limited/excluded liability for breach.

HELD: Simon Brown QC - no usual battle of forms. Throughout always intended that T ts applied - stipulated time, quality, without which no manufacturing.

A appealed - AC parties intentions could be deduced from what happened. Couldn't disregard ref to As terms on acknowledgement of purchase. A didn't place reliance on its terms in correspondence after dispute, no relevance.

Still apply battle of forms and general principles.

11

Routledge v Grant (1828)

Up until offer is accepted, offerror can withdraw.

FACTS: Offer by prospective lessee, open for 6 weeks. Before expiry, def withdrew offer. Towards end, Pl accepted. HELD - rejected Pl's claim to enforce contract, "if six weeks are given on one side to accept an offer, the other has 6 weeks to put an end to it."





Offeror can expressly define how long offer is open, then withdraw offer whenever. But law of consideration - promise doesn't bind its maker unless requests and receives something in return.

Gratuitous promise - given not in exchange for anything, doesn't bind. Therefore no form of contractual obligation ever arose.

Contract - mutuality of obligation "one party cannot be bound without the other". Best CJ. But unilateral contract not yet arisen - might not have been permissible.

12

Mountford v Scott (1975)

FACTS: Offer to sell property, open for 6 months. But prospective purchaser paid £1 for the promise.

HELD: consideration, although nominal, converted offer into an option (a binding contract) so offeror was not free to withdraw it during 6 months.

13

To effectively withdraw an offer...

must communicate it to the offeree.
Byrne & Co v Van Tienhoven (1880)

14

Byrne & Co v Van Tienhoven (1880)

FACTS: Defs offered to sell 1000 boxes of tinplates. 1 Oct. Next week price rose sharply. 8 Oct, Defs wrote again to withdraw offer, reached on 20 Oct. Defs already telegraphed acceptance on 11 Oct. HELD: Contract. Acceptance made before intended withdrawal communicated.

Lindley J - if uncommunicated withdrawal were valid one wouldn't know his position until waited to be sure that no letter was posted to refuse it. Legal principles and practical convenience require ... the footing that O & A constitute a contract binding on both parties.

But here no point were parties ad idem.

15

Dickinson v Dodds (1876) - withdrawal of offer must be communicated, but doesn't have to be formal or direct.

FACTS: Written offer to sell houses to Pl, open until deadline. Day prior to expiration Pl told by someone else that Offeror now offered to 3rd P. That sale was concluded on that day. Pl tried to accept offer before deadline.

AC - allowed appeal against specific performance granted by TJ. No contract between parties, the Pl knew that offeror no longer minded to sell to him. Withdrawn.



16

Dickinson v Dodds 1876 - why??

Equitable remedy for sp performance means that contract made first takes precedence. But not in CL - regards mutually inconsistent contracts as equally valid, leaves parties to decide which to perform/breach.

James LJ - "No principle or authority for prop that must be express and actual withdrawal of offer. Must be an offer continuing up to the time of acceptance, otherwise no acceptance. In this case Pl knew

Similar to snapping up cases.

But B y VT - no ad idem either. Here offeree thinks there is still an offer. But D v D offeree accepts not thinking that.

17

Shuey v United States (1865)

Withdrawal of offer in unilateral contract...


FACTS: US Sec of War published reward for info leading to arrest of suspects. No deadline. 7 months later order revoked offer. Next year, Cl gave info to authorities.

HELD - Claim for reward failed, US SC, because was validly withdrawn, even though he didn't know.
Strong J "Immaterial fact".
Unilat are made to whole world, must be freedom to withdraw - basic principle that can be withdrawn if not yet accepted, and provided offeror didn't contract to keep it open. Published in same way as made = effective.
Pg 12

18

Ramsgate Victoria Hotel Co v Montefiore (1866)

Termination of offer by lapse of time:
FACTS: Def applied for shares in June 1864. Heard in 1864 when company asked him to pay for shares (the acceptance). Def didn't want them anymore. HELD: Offer lapsed.

Buckley J’s judgment in Manchester Diocesan Council for Education v Commercial and General Investments (1970) -

1. implication offer made on terms that if not accepted within reasonable time is withdrawn.

2. Or offeree refuses if doesn't accept timely. Inference drawn from conduct. Objective assessment of facts and fairness.

But until offer accepted offeror can withdraw or limit it.

19

Acceptance - needs knowledge of offer.

Williams v Carwardine (1833)




FACTS: reward offered for info re murderer. Pl gave info to ease her conscience, thought didn't have long to live. Jury found motive was not offer or reward but CFI gave verdict in her favour. Motivation irrelevant.

Treated as problem of evidence - relevance or irrelevant.

20

Tinn v Hoffman (1873)

FACTS: Parties buy 800 tons of iron. Offered to sell 69 sh a ton. Before letter arrived, other wrote offering to buy at same time. Construed as CO - also referred to getting more iron at lower price, but problem of identical offers crossing in post - don't form contract. More communication needed to respond to one of two offers.


Blackburn J, majority: "exchanging offers is not exchanging promises. Promise made in ignorance of the other side isn't acceptance of the other. Must say "I accept..."

- relies on consideration/bargain. But not obvious why agreement must take form of bargain. Grove J - requires a moment of reflection before acceptance. But now is re need for communication/certainty.

Honyman J - dissent " why not a good contract? Parties are ad idem at the same moment." Ad idem isn't a good analytical tool - here parties bind when they are unaware.

21

R v Clarke (1927)

FACTS: Gov of W Aust, reward for info to arrest murderers. Pardon to accomplice who gave info. Clarke gave info, to convict himself of murder. Sued Crown for reward, but conceded that wasn't his motivation at time.

HELD = didn't validly accept offer of reward - unaware of existence of offer.

Bishop, Beale and Furmston - offer doesn't have to be min motivation for offeree acting, providing they are aware of the offer."

But , R v Clarke and Williams v Carwardine decide motivation irrelevant as long as aware of offer.

McKendrick - act wholly motivated by other things isn't acceptance, but if existence of offer plays some part in the act there is acceptance.

22

Acceptance in Unilateral contracts:

Promises a benefit if offeree behaves in certain way - performance of a condition.



Offerror not obliged to honour promise until condition is fully performed.

But when is offer accepted - and until when can offeror withdraw?

Can be acceptance when offeree embarks on performance of condition.

23

Luxor v Cooper (1941)

FACTS: Defs owned two cinemas, wished to sell. Would pay agent £10K. A introduced, but L and C sold to another. A claimed commission/damages arguing implied term that apps wouldn't prevent completion of transaction. HL found for apps - denied commission unless R client bought cinemas.

No acceptance until full performance. Whether implied term could be introduced into contract. Test Is necessity.

L Russles - says should be claim in restitution - quantum meruit - how much Cl deserved to be paid. Not available here because unilat contract fully specifies condition on which commission is payable.

24

Errington v Errington (1952)

FACTS: Father bought house for son and daughter-in-law to live in, would transfer into their names if they paid off mortgage. He dies, widow tries to possess. Estate not bound to transfer until condition fully performed - but as performance already begun to late to withdraw.



Denning - acceptance occurs earlier here.

25

Daulia v Four Millbank Nominees (1978)

FACTS: Pl promised if gave Defs deposit and signed part of their contract for sale of land, defs would sell properties. Defs refused to exchange contract - exchange part of condition, argued had validly withdrawn offer prior to completion.

HELD: complete performance of condition. In any event defs not free to prevent fulfilment of condition - implied subsidiary promise that once performance of condition began, completion is not prevented.

Implied promise accepted by embarking on performance.

Goff LJ - "...until offeree starts performance, no contract at all, just unilat. But here pl fully performed the condition.

Must be an implied obligation on offeror not to prevent condition becoming satisfied - arises once offeree starts performance. Until then Offeror can revoke whole thing."

Obiter - not necessary for decision of case.

26

Re implied obligation - Daulia? 1978

Offord v Davies 1962 - Erle CJ - "promise itself creates no obligation. It is binding if pl acts upon it..but until the condition has been at least part fulfilled the defs have the power of revoking it."

Also Shuey v United States - Strong J.

But Luxor v Cooper - need to imply obligation was rejected.


27

Professor Maurice Wormser, in “The True Conception of Unilateral Contracts” 26 Yale Law Journal 136:

B was not bound to keep walking - so why shouldn't A also be will-free?