Battle of the Forms & Auctions

Question 1

What is the BoF

Answer 1

• Common law combining 2 distinct rules around formation of contract
  Where individual companies are sending T&Cs
• Where terms are sufficiently different between 2 sets of standard forms, courts have to decide if they are significantly different = counteroffer.

Question 2

The Last Shot Rule

Answer 2

• The last offer made by a party which is accepted by the other will be the terms on which the contract is formed.
• Arises where there is dispute on the terms of which party they are dealing.
• Combination of 2 common law rules:
  1 – Hyde v Wrench– a new counteroffer extinguishes the previous offer
  2 – Brogden v Metropolitan railway co. – acceptance by conduct.

Question 3

Exceptions to the last shot rule

Answer 3

• Butler Machine Tool co. Ltd v Ex-Cell-O Corp. –Seller (B) offered to buy with price variation clause, buyers (E) ordered on their standard terms (no variation), seller (B) returned tear off slip from buyers (E) order stating they entered into on their terms of earlier offer.
  CoA – contract formed when they returned buyers (Ex) slip which rejected Butlers earlier offer -> no price variation clause.
• TRW v Panasonic – first shot requiring buyer (TRW) to sign a customer file earlier which incorporated Panasonic’s general conditions subjecting any contract to German Law.
• G Percy Trentham v Archital Luxfer – agreement made between parties on diff terms but been performed-> missing elements are inessential as parties have turned their ‘BoF’ into a working business relationship. Terms which don’t mirror can be ignored.

Question 4

Auctions

Answer 4

• Auctioneer sells to bidding public on behalf of property/goods owner.
• Contract between the auctioneer and the highest bidder is a collateral (or side) contract to signify that the auctioneer, in his personal capacity, is making a collateral (or side) promise to perform his role of agent and create the main contract of sale between the seller and the highest bidder.
• Action w/reserve = sellar instructs minimum price, enshrined in the Sale of Goods Act 1979 at s.57(3).

Question 4

Auction rules

Answer 4

1 – Auctioneer displays goods in advance of sale of immediately prior to sale = ITT
- British Car Auctions v Wright - auctioneer convicted of making ‘offer to sell’ unroadworthy car, display of car held at ITT and not offer.
2 – Auctioneer requests bid = ITT
- Payne v Cave - the auctioneer’s requests for bids isnotan offer which can be accepted by the highest bidder.
3 – Member of the public makes a bid = offer
4 – Auctioneer asks for money of further bids = ITT5 – auctioneer drops hammer and accepted highest bid = acceptance
- Sale of Goods Act 1979 at s57(2)- the offer made by the public are accepted by the auctioneer when they drop the hammer, bangs the table, rings a bell, or undertakes some other custom to symbolise acceptance.
- Until the announcement is made, the auctioneer can also reject any bid, or the bidder can also retract (revoke) their bid, (Payne v Cave).

Question 4

Role of Auctioneer

Answer 4

• an auctioneer and in a personal capacity as the sellar’s agent (get the best price for seller).
• Auction w/out reserve = makes a unilateral contract with the room to sell to the highest bidder – this offer is accepted by making the highest bid i.e. by contract.
• Barry v Davies – 2 engine analysers offered for sale w/out reserve , C bid £200 each (worth £14k), auctioneer withdrew sale. CoA – breach of collateral contract by auctioneer