Instantaneous Communication Flashcards
What is the most important case regarding instantaneous communication?
Entores v Miles Far East Corporation (1955)
THIS IS THE STARTING POINT
Entores v Miles Far East Corporation (1955)
E = company based in London
Sent an offer to purchase 100 tons of copper cathodes to the Ds (based in Amsterdam)
Offer = communicated by Telex
Ds sent acceptance by Telex
When the contract was not fulfilled, the complainants tried to sue D damages
Ct had to decided where acceptance had occurred
Held: postal rule did not apply for instantaneous communications
Instead, acceptance would be when the message by Telex was received
What did Lord Denning state in the Entores case?
Analogy of an aeroplane distorting a contract conversation over a river
If there = problem in communication + 1 party doesn’t try to resolve it, the law cannot be on the side of that party
Responsibility would be on the party who is trying to communicate
Apple Corps Ltd v Apple Computer Inc (2004)
The parties were involved in making a contract
Conversations/ contract occurred over a transatlantic telephone call
A contract had definitely been formed
Issue was WHERE it had been formed (UK vs USA)
Ct couldn’t reach a clear conclusion
Held: it was okay to assume that the contract had been formed in 2 places at the same time
Are the laws around IC very strict?
What cases illustrate this?
There are very strict rules of law BUT the Cts also relies of pragmatism to solve disputes
- Apple Corps Ltd v Apple Computer Inc (2004)
- Conductive Inkjet Technology Ltd v Uni-Pixel Displays Inc (2013)
Contracts had bene formed in 2 places at the same time
What is a vital thing to remember about the Entores case?
Entores dealt with the place where contract was made, not the time
Case provides no direct authority as regards the time when a telex acceptance is effective
Tenax Steamship Co v Owners of the Motor Vessel Brimnes (1975)
(The Brimnes Case)
Brimnes (ship) belonged to Ds
Agreed to sell her to T
Condition that the ship = time-chartered back to them
T sent a Telex, gave notice of withdrawal of the ship from service
Message = sent during normal office hours
BUT D didn’t read it until the next day + had already made payment
Q: notice of withdrawal effective before the D’s payment
Held: withdrawal was effective when it was receives, not read
Was sent during normal office hours
Staff neglected to pay attention to it
Withdrawal of an offer sent through forms of IC, such as Telex, would be effective when it could have been read by the other party; not when it was actually read
What was held in the Brimnes case?
Withdrawal of an offer through IC are held to be effective when it is received (during normal office hours) not when it is read
Case however, didn’t make the law any clearer
Brinkibon Ltd v Stahag Stahl (1983)
B = based in London
= buying steel from Ds, = sellers based in Austria
B sent acceptance by Telex
B later wanted to sue Ds for breach of contract
Issue = where the contract was formed (depended what law would deal with the breach)
Held: contract created in Austria
CA: dismissed the appeal
Held: contract was formed when the acceptance was received by Telex in Austria
Ct reaffirmed Entores - postal rule did not apply to instantaneous communication
BUT also stated: = no universal rule
Each case would have to be resolved by looking at the intention of the parties + sound business practice (Lord Wilberforce)
What did Lord Wilberforce state in the case of Brinkibon?
‘No universal rule can cover all such cases: they must be resolved by reference to the intentions of the parties, by sound business practice + in some cases by a judgment as to where the risks should lie’
What was held in Mondial Shipping and Chartering BV v Astate Shipping Ltd (1995)?
(Fax machine)
Held: was effective when the acceptor could ‘reasonably have expected to have read it’
The acceptor should be allowed to assume that the communication will be read at a time that could reasonably be expected in the normal course of events
What modes of IC does the Mondial Shipping case have particular relevance to?
Fax (facts of the case)
Email
Voicemail
Thomas & Anor v BPE Solicitors (2010)
Email had been sent at 6pm on a Friday evening before a bank holiday weekend
Ds argued that it was not effective when it was received in the mailbox - sent after working hours (5/5:30)
Would only be seen on Tuesday morning
Held: in the ‘context’ in which the email was sent, was sent within working hours
Therefore effective at 6pm on the Friday, if the email was an acceptance
Who did Blair J make references to, when deciding the case of Thomas & Anor v BPE Solicitors?
Lord Wilberforce in the Brinkibon case
Held: in the ‘context’ in which that email was sent, = deemed to be sent during working hours
Was therefore effective at 6pm on the Friday if the email was an acceptance
Shows that there isn’t a universal rule for ‘reasonable time’
= dependent on the facts of the case
What ‘rules’ were established in the Greenclose Ltd v NatWest Bank Plc (2014)? (3)
OBITER STATEMENT:
- Postal rule doesn’t apply to emails
- Phrase ‘giving notice to’ implied the person to whom notice was being given to must actually have seen the email (arrival in inbox = insufficient)
- An offeror can specify + insist on a particular mode of acceptance
(held in this case email wasn’t a prescribed Mode)
