Formation I: The Offer Flashcards
Understand Offer in relation to Contract formation
Introduction
Formation
o Offer and acceptance
o Intention to form a legal relation
o Certainty
o Consideration
· Why these elements?
· Goals for this week:
o What is an offer?
o Distinction from an invitation to treat.
o Bilateral and unilateral contracts
o Hard cases: Tenders
o Termination of offer
SUMMARY of previous:
An offer is a statement that is made with the intention of being binding after being accepted.
Contract law is about what people choose
Principle of equal choice → known as freedom of contract.
Choose whether to contract or not to contract → principle of equal choice → Your choice is not more important than mine.
Corrective justice → If we both make choices → if i make my choice more important than yours → you are breaching something.
Economic efficiency. →
IS THERE A CONTRACT?
Offer and acceptance → sometimes people make offers → but no intention to be bound.
Intention to form a legal relation
Minimal certainty → don’t know how to enforce this → have not agreed on enough things.
At times there is offer and acceptance but no contract because no CONSIDERATION → just a NUDUM PACTUM (a gift).
Elements of formation → offer future performance → chooses to accept → creates an in personam right.
Why do we have these elements →
Footnote → Some parties do choose to be bound but at times no consideration. →
Goals
What is an offer?
Telling an offer from an invitation to treat
Bilateral and unilateral contract
Hard cases: Tenders
Termination of offers.
WAS THERE AN OFFER?
Boulder Consolidated Ltd v Tangaere [1980] 1 NZLR 560 (CA)
Getting the timeline straight.
· Plaintiff’s claims:
o Where is the acceptance?
o Where is the offer?
FACTS:
Boulder and Tangaere → contracted and agreed for Lot 168 → 1971
Modification for Lot 203
21 December 1976 → letter from defendant asking to choose another lot or get a refund
8 March 1977: Plaintiffs reply
March 1977 (after 8 march): note fro defendant with list of sections prompt from defendant
June 1977: After prompt from defendant, plaintiff replies with choice of Lot 138.
Legal question → about offer and acceptance.
-WHERE IS THE POTENTIAL OFFER?
Note → sections with titles available listed herewith. → lists sections including section 138 → not necessary a letter → sections with titles available listed herewith… (includes lot 138) → OFFER. → DOES THIS NOTE AMOUNT TO AN OFFER → if it is an offer → When is it accepted?
Where is the claimed acceptance? → PURPORTED ACCEPTANCE → prompt in June 1977. → IN THE MEANTIME SOLD TO ANOTHER
IF IT WAS AN OFFER → Then breach of contract → because they sold it to another person → Even though contractually obligated to sell it to Mr Tangeare.
WHAT IS MR TANGEARE SEEKING → DAMAGES → he will not get the lot → CONTRACTUAL RIGHTS ARE IN PERSONAM → the lot was sold to another (title transfer) → No claim against third party → only in personam against Boulder Consolidated. → Can get compensation for breached contract.
· McMillan J
o Pp. 566-567: Four statements
§ (1) The principle of offer and acceptance
§ (2) The definition of offer, distinguished from an invitation to treat
§ (3) The objective test
§ (4) Offer is a condition for acceptance
Justice McMillan → gives us the law on offer and acceptance and particularly offers.
1ST → Contracts are made by offer and acceptance → First thing → Contracts are made by offer and acceptance (Boulder consolidated v Taengere) →
2ND → Invitation to treat is DISTINGUISHED from binding offer → on the ground that it is not made with intention that it is binding as soon as other assents to its terms → REWORDED →
CHOSE → Choice to be bound if assented to → offer is utterance → if someone says YES to → there is a CONTRACT → uttered with intention → that when said YES → there is a contract.
3RD → Courts must apply an objective test → apparent meeting of minds → to find OFFER AND ACCEPTANCE. → Meeting of minds needed to establish a consensu.
4TH → If there is no offer → it does not matter if someone says YES → must be an offer to say YES to →
MR TANGERE → SAID YES → but cant say yes to something that is not a contractual offer.
o Pp. 568-69: “I cannot think that the correspondence should be construed as an offer to hold each section in the list for Mr Tangaere to accept at such time as he wished. It is not reasonable to suppose that Boulder would agree to do that. Rather do I think that it did no more than indicate the various sections which Mr Tangaere could consider as a basis for a possible sale, making it clear that the final choice could only be reached after discussion with Mr Quirk at the site.”
The note → is an invitation to treat → not objective intention to be bound → invitation to deal with Boulder → No reasonable interpretation, objective interpretation → NOT AN OFFER.
· Cooke J
o Pp. 562-63:
§ McMillan’s traditional approach
§ A new global approach
o 563: “I would respectfully keep it in mind as a reminder that a mechanical analysis in terms of offer and acceptance may be less rewarding than the test whether, viewed as a whole and objectively, the correspondence shows a concluded agreement.”
o 563-64: The global approach applied
Cooke in private law → cuts to the chase → principle and justice → tries to do this in Contract law.
Justice Cooke → after reading English cases said → We should not worry about rules of offer and acceptance
SAID → apply like the English Courts apply a global approach → look at correspondence (whole) and see whether it amounts to an objective agreement →
Cite American Courts → you know Pornography when you see it. → Justice Cooke says this but in relation to Contracts → YOU KNOW AGREEMENT WHEN YOU SEE IT>
Does his analysis based on this → applies global approach → then comes to the same conclusion → NO offer and acceptance.
In every case there is someone arguing against the law → if you have a case and there doesn’t seem to be offer and acceptance → YOU CAN ARGUE GLOBAL APPROACH. → can use a holistic approach → GLOBAL APPROACH CAN BE A USEFUL TOOL IN THE COURT.
TWO POSSIBLE APPROACHES → TRADITIONAL AND GLOBAL.
· Analysis
o A corrective justice rationale
o An economic analysis rationale
WHY IS THIS THE RULE ON OFFERS? (Boulder)
Offer → objective intention to be bound.
Why is it this rule and not another?
The offer must embody choice → external objective → Act expressing Choice. → objective choice.
Choice is valuable in contract law.
Carlill v Carbolic Smoke Ball Co [1893] 1 QB 256
The advertisement: “100 l. reward will be paid by the Carbolic Smoke Ball Company to any person who contracts the increasing epidemic influenza, colds, or any disease caused by taking cold, after having used the ball three times daily for two weeks according to the printed directions supplied with each ball. 1000 l. is deposited with the Alliance Bank, Regent Street, shewing our sincerity in the matter.”
There is a chemicals company → puts out an advertisement saying if their customers uses the ball three times daily for two weeks → and contracts Influenza → then they owe the customer 1000 Livres (pounds).
WHAT IS THE CLAIMED OFFER?
Alleged offer → is the advertisement.
· What is the claimed acceptance?
Using the smokeball in the prescribed way and catching the Flu (BEHAVIOUR)
Corporation and old lady.
· The ordinary rule on advertisement (Partridge v Crittenden [1968] 1 WLR 1204).
Ordinary rule ( PARTRIDGE V CRITTENDAN [1968] ) → rule states that advertisement in newspaper IS NOT AN OFFER → and only an invitation to treat.
Offer for couch on newspaper → cannot go in and accept automatically → it is just an invitation.
· Claims of the defendant.
Lawyers for carbolic → If you go the the market and says my tomatoes are the best money back guaranteed → MERE PUFF → NO OFFER → just things people say → if it is not the best tomato then cannot go back.
Cannot make a contract with the world.
No acceptance → Acceptance is assenting to the words of the offer.
No consideration → and other claims as well.
The rules would agree with the Corporation → But the principles of Contract law go against this.
COURT changes and distinguishes unilateral contracts.
· Bowen LJ
o Was there an offer?
§ Not mere puff: The significance of the deposit + commercial sense
§ An offer to the world is possible.
§ The significance of being a unilateral contract.
SAID → You put 1000L in the bank → why would you put this money in the bank → why did you do that if you didnt want people to take it seriously → put 1000L → it is an extravagant offer → but people can make extravagant offers → CARBOLIC MADE CUSTOMERS FROM THIS. → NOT MERE PUFF.
Cannot have a contract with the world → BUT CAN MAKE AN OFFER to EVERYONE → Contracts that are based on an offer to everyone → When you lost a pet you put a ad → lost → reward of $50. → that is an offer to everybody. → The difference in the carbolic smoke ball example → WE ARE DEALING WITH A UNILATERAL CONTRACT
BILATERAL → promises going in different directions → Meet and say yes → offer and I say yes →
UNILATERAL CONTRACT → one party promises and the other accepts by their behaviour → they do the thing specified. → pay $50 to find pet → bring pet (ACCEPTANCE) → don’t have to go before and tell them you are looking for them.
Different rule for interpreting advertisements in UNILATERAL CONTRACTS → in rewards contracts →
Bilateral contract → advertisement is a invitation to treat
Unilateral contract → it is an offer
BUT SAME PRINCIPLE AT WORK →
o Was there acceptance?
§ Manner of acceptance was contemplated by the offeror.
If the person making offer → intimates (expressly or impliedly) that it will be sufficient to act on the proposal without communicating acceptance → if clear that it is a UNILATERAL CONTRACT → the performance of condition is a sufficient acceptance without notification.
BOWEN → saying that to interpret an utterance → You have to look at the objective interpretation of the intention of the offeror.
For ex. When Harvey Norman puts an ad on for couches → the objective interpretation of their intention is an invitation to treat.
When carbolic puts an ad → the interpretation is they meant it as an offer → something that you can do what they said you could do and have a contractual right against them.
OBJECTIVE INTENTION OF OFFERER. → just different contexts. → in both cases.
o Was there consideration?
§ Inconvenience to the offeree and benefit to the offeror.
Court → consideration does not have to be a direct benefit to the offerer →
Consideration → it can also be a detriment to the offeree → the mere fact she payed for it is ENOUGH.
DIFFERENT PRIMA FACIE RULES FOR BILATERAL AND UNILATERAL CONTRACTS.
Prima Facie → Face value rule → only prima facie → because it has to be analysed further including the context and specific scenario → AND → GOES TO THE OBJECTIVE INTENTION OF THE INTENT OF THE OFFERER.
Rules that help us in different contexts. → at the end the principle that matters
Pharmaceutical Society Of Great Britain v Boots Cash Chemists (Southern) Ltd [1953] 1 QB 401
Branch of criminal law → substances under the poisons regulations → that cannot be sold (drugs) unless supervised by a pharmacist. → where is the sale when you go into a drug store?? (legal sale).
Plaintiff → offer is displaying on shelf → acceptance is putting in basket.
Defendant says NO → offer is when customer brings drug to the counter → and acceptance is when cashier takes money and gives them drug.
ISSUE → in first scenario → drug store is in breach of duty because sale happens in the aisle
Second → no breach → because it is under the supervision of a pharmacist.
· What is the prohibition?
· Where is the offer?
· Where is the acceptance?
If you put in basket → cannot be a breach of contract → NOT AN OBJECTIVE INTERPRETATION OF THE INTENT OF THE PARTIES AT THE TIME OF PUTTING THINGS IN THE BASKET → wasn’t intent of party. → THE PRINCIPLE BEHIND THE LAW.
Depends on the objective sense of the external actions of the parties → their choice.
· Somervell LJ
o 406: “in the case of an ordinary shop, although goods are displayed and it is intended that customers should go and choose what they want, the contract is not completed until, the customer having indicated the articles which he needs, the shop keeper, or someone on his behalf, accepts that offer. Then the contract is completed.”
Pratt Contractors Ltd v Palmerston North City Council [1995] 1 NZLR 469
· Facts sorted
· Timeline
· The terms mentioned in the call for tenders.
They put out a CALL FOR TENDERS → Tender is both the process and the thing you submit in this process in
Published call for tenders (COUNCIL)
Four tenderers submit tenders (One company submits two tenders)
The lowest tender was (price) → Higgins → because they were the lowest price → The Council starts negotiations with Higgins.
The issue was → PRATT WAS THE LOWEST CONFORMING TENDER.
Higgins tender was a NON CONFORMING TENDER.
The call for tenders said → ALL TENDERS MUST CONFORM WITH THESE REQUIREMENTS → AND TO THOSE THAT CONFORM WE WILL CONTRACT THE CHEAPEST BIDDER.
Council enters a contract with Higgins → And Pratt brings claim to say that is not ok.
Call for tenders → is that an offer or an invitation to treat?
TENDER → invitation to treat → When you have a call for tenders → the submission is not an acceptance → the submission is an offer that then can be accepted →
The Terms of the tender → call for tender → imagined two stages → there are seven characteristics and seven counts on which the tenders are evaluated → then we think about price
All tenders have to conform to the pre-requirements → THIS IS PASS/FAIL test → only those conforming are judged on their price.
Higgins not conforming because → failed on methodology (the design) → the Council wanted an overpass with intersection and exact specifications → and what structure and design to use.
Higgins said → we have a better methodology which was much cheaper and better → and the council said ok → but failed on what they have to conform to.
Call for tender → when you want to do project or services → and we want to choose who wants to get this contract for me and contract with me → each person submits a tender and I will choose based on the criteria given in the call for tender.
Tenders → are very detailed and a lot of papers → that is what you submit → and person who chooses the tender they contract with.
WHETHER BY ENTERING THE CONTRACT WITH HIGGINS WAS PALMERSTON NORTH IN BREACH OF CONTRACT WITH PRATT?
Not at all clear that Pratt had a contract to build the project. → did Pratt have a contract to perform the work?
Where was the offer and acceptance? → THERE WAS NONE. → NO.
Submitted the tender is the offer → Tender is invitation to treat → tender submission can be accepted.
· Defendant claims: the advertisement was only an invitation to treat.
o Spencer v Harding (1870) LR 5 CP 561. → the initial call for tenders is invitation to treat → the submission is offer which can be accepted.
· Gallen J
o P. 478: Citing Bingham LJ in Blackpool and Fylde Aero Club Ltd v Blackpool Borough Council [1990] 3 All ER 25.
Gallen J cites the case above (Blackpool) →
Blackpool → the Airport issues a call for tenders. → for an operator for a type of flight in airport → one of the companies puts in a tender submission in time → but the box is emptied late.
Therefore their tender is considered late → even though they were on time.
Not the fault of the tenderer → it was the fault of the airport.
Lord Justice Bingham → the invitee is protected if they submitted before deadline → they are entitled based on contractual right in law to be sure after the deadline be opened and considered → if you participate in a tender such as this you have a contractual right to be considered according to the terms of the tender.
Gallen → Did the parties intend to create contractual relations with respect to the submission of the tender??
o A collateral contract about process.
There is a main contract → and there is also a process contract → as to how parties to the main contract will be accepted → secondary contract, ancillary contract, Contract B.
If Pratt has a right → it is not for the building contract. → if Pratt has a right it is under the Process contract.
If so → Where is the offer and acceptance when it comes to the secondary contract? → what is the offer in the secondary contract?
The call for tenders → is an offer for the PROCESS CONTRACT → at the same time → it is only an invitation to treat for the main contract →
It is clear that the call for tenders is just an invitation to treat when it comes to the building project → but for process contract it could be an offer.
How was the offer for a process contract accepted? → What kind of contract is a process contract? → sort of contract you accept BY TAKING AN ACTION.
A UNILATERAL CONTRACT → an offer that is accepted by a behaviour → submitting the tenders →
It is not always the case that there is process contract that is an offer in a tender → It all depends on the objective interpretation of the person issuing the tenders.
Gallen based on Bingham → the more formal a call for tenders, the more onerous it is → the more likely it is that the objective intention for call for tenders is operating to make a process contract.
What is breached is contract TWO → process contract → not the main contract → Pratt never got the main contract.
Had to be considered under the call for tenders NO MORE.
THE UNDERLYING PRINCIPLES?
Have to be able to place it near the principle of equal choice → did they choose to be bound in this way? → IF YES → are these just rules → are they just and efficient
YES → this is the choice of the parties →
If we dont conform to terms → nobody would submit to tenders.
Principled rule → this is what the person chose → and we will hold them to that choice.
o Was there an intention to form a contractual relationship?
o What is the evidence?
o 487: “The plaintiff has therefore been the victim of a breach of contract because once the Council purported to act within the tendering framework, it was obliged, if it awarded a contract at all, to award it to the tenderer submitting the lowest conforming tender. It then becomes necessary to determine to what that entitles the plaintiff. The plaintiff is entitled to be restored to the position it would have been in had the Council complied with the obligations imposed upon it.”
Cases that demonstrate a basic concept (Boulder) → what is an offer and what is not an offer → inv to treat, mere puff, statement
Rule → an offer is distinguished from other things → because it requires an objective intention to be bound by the offer if it is assented to.
Offer has to embody a choice
Advertisement in collateral and unilateral contract. →
Offer for process contract, and an invitation to treat for a tender etc.
Pratt → two contracts → process contract.
General rule → offer is a utterance of intention to be bound.
Dickinson v Dodds [1876] 2 ChD 463
Note on subjectivist language: the test is always objective.
· “This offer to be left over until Friday, 9 o’clock, A.M. J.D. (the twelfth), 12th June, 1874”
· The effect of time on the offer
· No irrevocable offer
· Form of revocation
o Express revocation
o Implicit revocation: “there is neither principle nor authority for the proposition that there must be an express and actual withdrawal of the offer, or what is called a retractation.” (James LJ, at 472)
o Note on misleading headnote: A requirement of communication. (Byrne & Co v Leon Van Tienhoven & Co [1880] 5 CPD 344)
Old case
Lot of subjective language → what people thought and what they believed
Seller and buyer → says that this offer will be available until 9am 12th June, 1874
The defendant first sells to someone else → The agent Barry said that the property is already sold → then he tries to accept the offer → defendant says no it is already sold
Effect of passing of time on Offers.
An offer must be accepted within a reasonable time → collapses after the period of reasonableness expires
If you objectively interpret it as 9 am → you cannot believe that it is open at 10am
It is only the objective intention → not the subjective intention
Lord justice LJ → this being only an offer, the law says- and it is a perfectly clear rule of law that…
It is clear settled law that this promise being mere nudum pactum (naked promise) → just a promise → not binding
Just a promise that is not a contractual obligation
A promise is not binding unless it is contractual → the promise to leave the contract open is just a promise
SECOND LECTURE:
Dickinson v Dodds → old case before Smith v Hughes → subjective language (beliefs and wants, continuous agreement etc.)
The law of contract → is about objective intention to be bound → in this case before there was not the vocabulary to express this idea. → always about what we choose not about what we want or believe
These is an offer by Mr Dodds to Mr Dickinson → at end of the offer → there is this term, → offer to be left over unil Friday 9’o clock 12th June, 1874.
Sold to another party →
Mr Dodds goes to the mother in law to give a formal acceptance in writing. → fails.
Then sends agent to wait at the train station before 9 am → then the Agent tries to give acceptance to letter → then after he comes himself. → Then the question is whether the OFFER IS AVAILABLE FOR ACCEPTANCE OR WAS IT TERMINATED?
IF NO TIME IS MENTIONED.
Effect of time to the validity of an offer → for example someone wants to sell their car for $5000, I tell her yes there is a contract, a couple hours → yes. After three years → NO.
Beyond a period of reasonable time period → an objective interpretation of the intention of the offerer, that the offer is open after a reasonable time has passed.
Offer is valid ONLY FOR A REASONABLE TIME. → Rule.
How long is a reasonable time → Depends on the circumstances (situation) → for a conglomerate for example over a year could be a reasonable time.
Standard → only filled with content after the fact by a Court.
IF FIXED TIME LAPSES?
If against objective intention → given time before (9 am for example) and you offer at ten → it is against the objective intention → it does not matter if they subjectively wanted to sell it after → it matters what WE CHOOSE.
DICKINSON:
Chose to keep it open until 9am → now he wants to retract the offer before.
JUDGES → this being only an offer (the offer from Dodds) → it is a perfectly clear rule of law → although it is meant to be open till 9 am → it did not bind Dodds → this promise being a Nudum Pactum
Nudum Pactum → Naked Promise (agreement) → promise without consideration
And therefore was not binding → so Dodds was free as Dickinson himself.
Dickinson promised to keep the promise open → there is no breach of legal duty when you break a promise → what we can do is not fulfil our legal contractual obligations.
You have to have a collateral contract in order to not retract the offer.
For example, you can bind a certain amount of stocks in a company as a part of the company contract. → you cannot say no you cannot purchase the stocks at this price now after.
NO ONE SIDED IRREVOCABLE OFFER.
REVOCATION NEED NOT BE EXPLICIT → Can be communicated by a third party for example. → HAS TO COMMUNICATE IT TO THE OFFEREE however.
For example Boulder → lot 138 → If the note would have amounted to a real offer, then it would have been accepted, and then it would be a breach of contract. → IF THE NOTE WAS FOUND TO BE AN OFFER.
Hyde v Wrench [1840] 49 ER 132
OFFERS THAT HAVE TO REMAIN OPEN?
· Timeline
· Langdale L: The offer was rejected by the counteroffer.
· Note: Counter offer must be specific, not an inquiry (Stevenson v McLean (1880) 5 QBD 34)
· Note: Cross v Davidson [1898] 17 NZLR 576
o The mirror image rule.
Situation where the seller offers to sell at 1000, then counteroffers for 950. Seller declines, then buyer accepts the initial 1000.
Can buyer accept it AFTER HE HAS MADE A COUNTEROFFER.
When the buyer asked for cheaper → he was making an offer of his own, a counter-offer →
HYDE → Counteroffer.
If 1000 was accepted there would be a binding contract → but later made his own offer → THAT MEANS THE BUYER REJECTED THE INITIAL OFFER
MAKING A COUNTER OFFER REJECTS THE ORIGINAL OFFER → and when an offer is rejected it cannot be reconciled → the offer is dead → Can’t say now I want to take it back.
HYDE → Counteroffer rejects the original offer → which they can accept or not. But the original offer is void now.
STEVENSON
Please wire whether you would accept forty for delivery over two months, or if not, longest limit you could give → not a counter offer →
It is simply a proposition not an offer → and DOES NOT CONTAIN AN INTENTION TO BE BOUND.
Offer is a statement which embodies an objective intention to be bound if agreed to → Cannot say yes to the above → if it is not an OFFER THEN IT IS NOT A COUNTEROFFER.
MERE INQUIRY IS NOT AN OFFER.
CROSS V DAVIDSON:
Two parties by steam engines
One party says offer accepted. One hundred deposit National Bank Napier for you. Delivery early next week.
Not valid acceptance → NO MIRROR IMAGE → Acceptance has to mirror perfectly the offer → Cannot add more terms to the offer.
So it is not acceptance →
THE MIRROR IMAGE RULE
Added a condition → MEANS IT IS A COUNTER OFFER.
Dysart Timbers Ltd v Nielsen [2009] 3 NZLR 160
· Timeline
· The SC divides
· From Blanchard J:
o The offeror is master of the offer.
o Conditions for the offer can be explicit or implicit.
o A fundamental change
o The consequences of silence on a contemplated occurrence.
o Was the grant of leave a fundamental change?
NZSC case
Nielson makes offer saying if they give him an offer by the 13th of the month he will retract litigation.
There are two parties → they are already at Court → one party has already lost (Nielson) → therefore they have lodged an appeal for the SC.
Have to get leave from the Court to go forward to the higher court → seeked permission.
Went to the counter-party → where they owe $300,000 → Willing to withdraw our request to go up → if they give up $50,000 of what we were initially going to give you.
Nielsen said → if you are willing to accept $250,000 instead of $300,000 we will withdraw our appeal to go up.
Why is Nielson willing to pay $250,000 → NZSC only hears a few dozen cases per year → most cases don’t get leave to be appealed to the Supreme Court.
Nielsen goes to Dysart → we are willing to give up the chance to go to NZSC → if you just give up on $50,000 of the whole sum.
Then what happens on the 9th of August → the SC does grant leave for an appeal.
The deal looks good for Dysart → then they accept the offer of $250,000 instead of $300,000.
Was the offer of $250,000 rejected after it was accepted to be taken to the SC>
SPLIT DECISION → Tipping K, Wilson J, Elias CJ, Blanchard J, McGrath J
Blanchard → open to someone who makes an offer to stipulate the circumstances in which it will lapse. → For example Dickinson → attached to the offer a condition that the offer will lapse at 9am.
For example if the SC grants leave for appeal then the offer lapses. → if the offerer does not do so explicitly → Can assume so on the basis of objective circumstances → objective INTERPRETATION OF THE OFFERER → Whatever they objectively intend is the offer → there could be an implicit condition in the objective of the offerer.
Objective intention implied → could be that the offer elapses if able to go through to the Supreme Court.
THE OFFEROR IS MASTER OF THE OFFER (A ONE-SIDED EXAMINATION)
CONDITIONS FOR THE OFFER CAN BE EXPLICIT OR IMPLICIT.
WE NEVER LOOK AT SUBJECTIVE INTENTION FOR CONTRACTS → ALWAYS OBJECTIVE.
IN THE REALM of OBJECTIVE → we can express it objectively and implicitly → Sometimes you can imply conditions very unique to your condition → if leave for appeal is granted then the offer lapses.
However if there is an absence of an express term in the offer → in order for an offer to elapse for an implicit condition → in the CIRCUMSTANCES HAS TO BE FUNDAMENTAL → HAS TO BE VERY SUBSTANTIAL → so then whimsical conditions cannot be added after the fact. → IF IT DOESN’T affect the GROUND OF WHAT THE CONTRACT IS SETTLING.
Because it is possible for offerers to express explicit conditions → in order to read an implicit condition → if it was within the contemplation of the offerer → then the assumption is they would have MADE IT EXPLICIT → So if they remained silent → It is most likely not an implicit condition → IF THERE IS A FUNDAMENTAL CHANGE WHICH IS KNOWN TO THE OFFERER → And they didnt put it in → THE SILENCE WEIGHS HEAVILY AGAINST THE FACT THAT IT WAS IMPLICIT.
A FUNDAMENTAL CHANGE
THE CONSEQUENCE OF SILENCE ON A CONTEMPLATED OCCURRENCE.
REVOCATION. LAPSE OF TIME, REJECTION. COUNTEROFFER. EXPLICIT CONDITION. FUNDAMENTAL CHANGE IN CIRCUMSTANCES (An implicit condition).
All about the objective intention of the offerer. → what their objective intention is?? → EXTERNAL OBJECTIVE CHOICE OF THE OFFERER.
