Instantaneous Communication in Contracts Flashcards
- How can instantaneous Commincation be communicated by?
- Telex
- Fax
- E mail
- Voicemail
- What is the idea with instananeous communication and acceptance?
When and where the contract becomes affective by acceptance is very important for example the determination of where a contract was formed which will be based on where an acceptance was formed as well.
In relation to acceptance made using instantaneous communication, it is crucial to determine when and where the acceptance becomes effective.
- How is instantaneous communications different from the postal rule?
Instantaneous communication could be argued to differ from using the post, for which the postal rule is applicable.
- What happened in Entores v Miles Far Corp?
- Starting point of the law in this area.
- Dealt with communication by telex.
- The issue was where the acceptance took place.
- Lord Denning- held acceptance by telex took place where it was received, and not where it was sent.
- An extension of the postal rule was rejected.
- What does Lord Denning say in Entores?
Lord Denning- uses the analogy of an aeroplane distorting a contract conversation across a river.
the acceptor is aware that their acceptance has not been clearly communicated then they must attempt to recommunicate their acceptance.
If the offeror know s that there is a problem with communicating the acceptance and the acceptor tries their best to communicate with the offeror then the offeor is at fault
- What happened in Apple Corps Ltd v Apple Computer Inc [2004] EWHC 768?
A contraddtioal negation occurred between the parties one in the iuk one in the us this occurred over atlanic telephone.
The courts could not pinpoint the time of the acceptance as it was over phone call. Did it become formed in the uk or in the united states.
It was hel that where the contract was formed it was formed at both places at the same time. This ccase shows pragmatism
- What principle was set out in Conductive Inkjet Technology Ltd v Uni-Pixel Displays Inc [2013] EWHC 2968?
A contract resulting from complex negotiations can be held to be formed in two places at the same time.
- What happened in The Brimnes [1975] QB 929?
- The communication was not an acceptance, but a notice of the withdrawal of a ship from a charter party. The courts of law gave us an inducation of when communication was held to be effective
- It was held to be effective when it was received on the charterers’ telex machine during office hours, although it was not read until the next morning. They were bound when it arrived on the machine.
- What happened in Brinkibon Ltd v Stahag Stahl [1983] 2 AC 34?
- The H o L approved the Entores approach, but did not indicate whether the same rule should apply in all circumstances.
- Lord Wilberforce stated as follows:
‘No universal rule can cover all such cases:
they must be resolved by reference to the intentions of the parties, by sound business practice and in some cases by a judgment as to where the risks should lie’.
- What happened in Mondial Shipping and Chartering BV v Astate Shipping Ltd [1995] Com LC 1011?
- Dealt with a fax giving notice under a contract.
- Held to be effective when the acceptor could reasonably have expected it to be read.
- Particularly important in relation to communication such as email and voicemail.
- 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.
Eg during office hours
- What happened in Thomas & Anor v BPE Solicitors [2010] EWHC 306?
- An email had been sent at 6pm on a Friday evening before a bank holiday weekend.
- Defendant solicitors argued that it was not effective when received in the mailbox as it was sent after working hours and would only be seen on Tuesday morning.
- Blair J decided that the issue must be resolved with reference to Lord Wilberforce’s quote in Brinkibon. No universal rule, its about sound business practice
- It was held that in the ‘context’ in which that email was sent, it was not to be deemed to be sent after working hours and was therefore effective at 6pm on the Friday if the email was an acceptance.
- What happened in Greenclose Ltd v NatWest Bank Plc [2014] EWHC 1156?
- Obiter statements.
- The postal rule does not apply to emails
- The phrase ‘giving notice to’…implied that the person to whom notice was being given must actually have seen the email- arrival in the inbox would not be sufficient.
- An offeror can specify and insist on a particular mode of acceptance.
- In this case, email was not a prescribed mode
- What happened in Lehman Brothers v Exxonmobil [2016] EWHC 2699?
- Greenclose Ltd v Natwest was distinguished on the point of prescribed mode of acceptance.
- An issue in the case was whether a contractual default notice would have been validly served by email.
- It was held that email would have been a prescribed means of communication in this case.
- What is the law in relation to internet and website transactions in instantaneous comminciations?
- The contract is formed when the seller acknowledges to the purchaser that his/her offer was accepted.
- Article 11 EU Directive on Electronic Commerce (Directive 2000/31/EC)- Regulation 11 Electronic Commerce (EC Directive) Regulations 2002
- …the order and acknowledgement of receipt are deemed to be received when the parties to whom they are addressed are able to access them…
