Evaluation: Offer + Acceptance - Contract Law Flashcards
Offer - Is a display an offer or invitation to treat? (Point)
The issue of whether something is an offer or invitation to treat is confusing for the parties.
Offer - Is a display an offer or invitation to treat? (Evidence)
Fisher v Bell and Pharmaceutical Society of GB v Boots Cash Chemist - clarified the law so that items on display are an invitation to treat and not an offer.
Offer - Is a display an offer or invitation to treat? (Explain)
This means customers cannot demand to buy items on display as they’re not another for sale. Instead customer offers to buy and shop decides whether or not to accept.
Offer - Is a display an offer or invitation to treat? (Link)
Advantage - prevents underage customers from buying alcohol
Disadvantage - Fisher v Bell, shopkeeper avoided conviction for offering sale of flick-knives when that was his intention.
Offer - Is an advert an offer or an invitation to treat? (Point)
Whether an advert is an offer for sale or an invitation to treat is confusing.
Offer - Is an advert an offer or an invitation to treat? (Evidence)
Advert in Partridge v Crittenden was not an offer. However, Carlill v Carbolic Smoke Ball advert was considered to be a valid offer.
Offer - Is an advert an offer or an invitation to treat? (Explain)
Crittenden avoided being convicted for offering sale of wild bird even though that was the intention.
Offer - Is an advert an offer or an invitation to treat? (Link)
Usually if an advert seems to be making offer to public, person would only have successful claim if there was misrepresentation or breach of Consumer Rights Act 2015.
Offer - Problems with counter offers (Point)
A counter offer will end original offer but conduct of offeree can be considered acceptance even if not signed.
Offer - Is an advert an offer or an invitation to treat? (Evidence)
(As seen in Reveille v Independent LLC v Anoteck International Ltd)
Offer - Is an advert an offer or an invitation to treat? (Explain+Link)
Many business agreements may go through many offers and counter offers until both parties agree and law recognises this.
Offer - Has the offer ended? (Point)
Offers don’t end even after the offeror has died (if offeree doesn’t know about death). Law is only clear when offeror specifies length of time which doesn’t always happen.
Offer - Has the offer ended? (Evidence)
Court says offer has ended if not accepted in reasonable time - Ramsgate Victoria Hotel v Montefiore acceptance communicated 5 months later.
Offer - Has the offer ended? (Explain)
Courts didn’t clarify how long ‘reasonable’ is.
Offer - Has the offer ended? (Link)
Offeree could argue they thought 5 months was reasonable whereas offeror may argue that it is excessive.
Acceptance - Should silence and conduct be considered acceptance? (Point)
The decision that parties in Felthouse v Bindley didn’t have a contract could be considered unfair, especially if both parties were happy with arrangement that acceptance would be assumed.
Acceptance - Should silence and conduct be considered acceptance? (Evidence 1)
(The offeror said something along the lines of ‘if I hear nothing back, I will assume you have accepted’).
Acceptance - Should silence and conduct be considered acceptance? (Evidence+Explain)
Could be argued Mrs Carlill’s acceptance was silent in Carlill V Carbolic Smoke Ball. She never communicated acceptance but conduct was enough.
Acceptance - Should silence and conduct be considered acceptance? (Link)
Silence is only an acceptable form of acceptance where there is some conduct too.
Acceptance - Is the postal rule outdated? (Point)
Using the post to accept offers seems an old fashioned measure. Can be problematic when things are delayed or even lost in the post. Not possible to prove date of postage.
Acceptance - Is the postal rule outdated? (Evidence/Explain)
Yates v Pulleyn - Lord Denning thought that the request to return acceptance by recorded delivery did not prevent letter being valid even though offeree decided to send it through normal post.
Acceptance - Is the postal rule outdated? (Link)
Therefore, the reliance on the postal rule in an era dominated by immediate communication methods raises questions about its practicality and relevance in modern contract law.
Acceptance - Is the postal rule too strict? (Point)
Postal rule favours the offeree and is therefore strict on offeror.
Acceptance - Is the postal rule too strict? (Evidence)
The acceptance is made when letter is posted (Adam’s v Lindsell).
Acceptance - Is the postal rule too strict? (Explain/Link)
But offeror will be unaware when this has happened.
Acceptance - How has the law adapted to modern forms of communication? (Point)
The courts have been reluctant to apply the postal rule to modern forms of communication.
Acceptance - How has the law adapted to modern forms of communication? (Evidence)
Entores v Miles Far Easy Corporation - acceptance was communicated when a telex was received rather than when it was sent.
Acceptance - How has the law adapted to modern forms of communication? (Explain)
This doesn’t follow postal rule.
Acceptance - How has the law adapted to modern forms of communication? (Link)
The EU has given guidance relating to contracts made online but clarification from courts is lacking, especially since technology changes so quickly.
Consideration - Do we need consideration? (Point)
If there is an obvious agreement between parties why is this so important
Consideration - Do we need consideration? (Evidence)
Professor Atiyah thought an offer, acceptance and iclr is enough for valid contract.
Consideration - Do we need consideration? (Explain)
Law Revision Committee said:
• a written promise should always be binding (with/without consideration)
• past consideration should be allowed
• performing an existing duty should be good consideration
• a creditor should be bound by a promise to accept part-payment of a debt
Consideration - Do we need consideration? (Link)
These proposals (by Law Revision Committee) have not been introduced.
Consideration - adequate and sufficient (Point)
The law is not concerned with whether a bargain is fair. Anything of value is considered sufficient consideration.
Consideration - adequate and sufficient (Evidence)
Paying £1 for a house is sufficient consideration but not adequate. The widow’s payment of £1 per year was consideration in Thomas v Thomas.
Consideration - adequate and sufficient (Explain/Link)
The value need not be adequate and what is adequate is a decision for parties themselves.
Consideration - Past consideration (Point)
Decision in Re McArdle is viewed by many as unfair as there was a promise of payment for work already done but they changed their minds and wouldn’t pay.
Consideration - Past consideration (Explain)
Court wouldn’t enforce payment as there was no consideration at time of agreement to pay. Main justification of this rule is some may take advantage of this and force people into contracts for goods and services they didn’t order.
Consideration - Past consideration (Evidence)
However, Re Casey’s Patent - implied promise of payment for work already done was enforced by courts.
Consideration - Past consideration (Link)
Difference between these cases - McArdle wasn’t offered payment until after work whereas in Casey, employee was promised a share while working on it.
