Acceptance (Offer and acceptance) Flashcards
What is an offer?
A clear and unequivocal statement showing willingness to be bound by terms if accepted
Issue 1 = Is it an offer?
An invitation to treat (Appears like an offer but isn’t) such as an advertisement, shop display, Request for tenure, Request for information
Can an advertisement be an offer?
Can be an offer if there is clear intention to deal - R v Warwickshire CC
Carlill v Smokehill - Clear intention and price meant that it was an offer rather than an ITT.
Can a tender requirement constitute an offer?
Specific tender requirements can constitute an offer - Pratt Contractors
Issue 2 = is the offer terminated?
Counter offer, lapse of time, revocation of offer, Occurrence of a terminating condition/change in circumstances
What is a Counter offer
The original offer is rejected an a new offer is sent on new terms. Original offer no longer valid. - Butler - Tekdata (Amphenols terms)
Lapse of time
Offer can expire if there is not acceptance within a reasonable time frame
Revocation of offer
You can revoke an offer any time until acceptance - Payne
Occurrence of a terminating condition/change in circumstances
For example “While stock lasts”. When stock finished then the condition is terminated.
Dysart v Nielsen
Issue 1 = Battle of Forms
Parties compete to dictate terms within a contract
Requirements for acceptance
Acceptance must be prompt
Acceptance must be clear and not contingent on other conditions
Acceptance must not be a mere acknowledgement.
Traditional last shot approach
Who the last party is to offer terms - Who fired the last shot. Tekdata
Global approach
Looks at the course of dealings between the parties - Cospak
Issue 2 = communications of acceptance
General rule of acceptance, Specific method of acceptance, Postal rule
General rule of acceptance
If no specific method of communication is specified then offerree may use any reasonable method to accept.
Specific method of acceptance
An offeror may specify how the offered should accept
Acceptance by silence
Silence is not acceptance - Re Selectmove
Postal acceptance
Acceptance is where the letter is posted. Acceptance is created when an email is sent - Dysart
Tekdata v Amphenol
Traditional offer and acceptance used. Tekdatas order was an offer - Amphenols acknowledgement was a counter offer - Tekdata accepting delivery was acceptance.
GHP Piling
GHP argue a preliminary contract was formed through the tender process. Leighton never made an offer so there could not be acceptance.
Butler v Ex-Cello
Butler sells machines to Ex-Cello. BMT had a price variation clause. On delivery to BMT price increased. Ex-Cello rejected price increase and said they contracted on their own terms (No price variation clause). Court agreed that Ex-Co made a counter offer so no acceptance of Butlers terms.
Cospak
Bottles sold from Cospak to Meadow were defective. Cossacks terms gave them a chance to rectify the bottles but Meadows herm said the contract is terminated. Court said that where the two terms can ‘Co-Exist’ to create a harmonious outcome then they should do this. Both terms here could be included (Gave Cospak a chance)
