Agreement Flashcards
What is an offer
A clear and unequivocal statement expressing willingness to be bound by the terms if accepted
What is not an offer
Invitation to treat (shop display, ad, request for information, request for tenders)
What 4 things can terminate an offer
counter offer, revocation, lapse of time, occurrence of terminating condition
What is a counter offer
rejection of an offer and a new offer with different terms. Means the original offer is no longer valid (Butler, Cospak, TekData)
What is revocation of an offer
Until acceptance, an offer can be revoked
What is a lapse of time
An offer can expire if there is not acceptance within a reasonable time
what is occurrence of a terminating consideration
example is a “sale while stock lasts”. Once stock is gone that offer has ceased
What must acceptance do
mirror the intention of the offer
What is the traditional approach to acceptance
Last shot doctrine: the last party to give terms have given the terms of the contract (usually requires the party to accept in some way, e.g. receiving delivery - or it may be situation of least cost provider)
What does TekData say about the traditional approach
two parties with 20 year ongoing business relationship and on one occasion goods were delivered late and of poor quality. Amphenol’s contract included an exclusion of liability clause, Tekdata’s didn’t. Here, T’s purchase order was the offer, then A’s acknowledgement was counter offer, then T’s acceptance of delivery was acceptance. Contract was on A’s terms.
Traditional approach is difficult to displace as it provides certainty
What is the global approach to acceptance
Look at the course of dealings of the parties and from this get a sense of whose terms prevail. Context, common intent and whether the goods could be reconcilable are all relevant - Cospak
What does Butler say on the global approach
Conflicting terms may be scrapped and replaced with reasonable implications
BP Refinery on global approach
Anti last shot clause - any terms inconsistent shall be of no effect (English case though so may not be binding)
Facts of cospak
Cospak: bottles sold by Cospak were defective. Cospak’s terms allowed them to rectify but Meadow Lea’s allowed them to terminate the contract. Both terms could be included: quality of goods, and C’s right to cure.
Global approach applied here as it is preferable to reconcile the terms if they can co-exist to give a harmonious result
Communication of acceptance
Any reasonable method can be used to communicate acceptance if nothing is specified in the contract. Silence is not acceptance (accept with repeat transactors
