INTRODUCTION/OFFER Flashcards
What is a contract?
A promise or set of promises.
Must be distinguished from a mere social agreement. Must be legally binding
TYPES OF CONTRACTS?
Private contract - where neither party makes the contract in the course of their business e.g neighbour selling a car but neither are car dealers.
Consumer contract - one party makes the contract in their business/trade - contract is with a person who is not acting in the course of their business.
Commercial contract - both parties are making a contract in the course of their business - both are businesses.
THE MAIN TWO TYPES OF CONTRACT?
UNILATERAL = Only one person, usually the offeror, is making the promise i.e to pay a certain amount/do a certain act, in return for the performance of an act requested by the promisor e.g £50 to find my cat - what they want in return is the performance of an act. (bowerman v ABTA)
BILATERAL = Here we have 2 promises - one given in exchange for the other e.g I promise to give you my car and you promise to give me 25k.
Definition of an Offer and key points.
- There is a contract when one party accepts the offer by the other - it must be certain and final, and must be a meeting of the minds.
- Must be an offer and acceptance to be contractually bound (MARTIN SMITH V WILLIAMS)
- The courts use an objective test:
SMITH V HUGHES - Offer to sell oats, Hughes accepted not specifying what oats, he got oats of one type - court looks objectively not subjectively. - The court cannot look subjectively - parties will always disagree with each other and it would take forever to resolve.
- An offer can be made to an individual, group or class.
- Can be express (clearly articulated) or implied (implication)
CASE =
Carlil v Carbolic Smokeball: D argued ‘sales talk’, never intended legal relations, court disagreed as they had deposited money already; had to pay.
LJ Bowen = “this is not an offer with the world, it can be MADE to the world”
When is an offer not an offer? (ITT) + cases.
When it is an invitation to treat.
Advertisements for goods are not offers but ITT’s - usually require further bargaining/negotiation.
“statements which indicate the makers willingness to receive offers, but they are not offers themselves”
PARTRIDGE V CRITTENDEN =
Advert in a magazine about wild birds for sale - no info about how many birds, no delivery details etc - wording did not constitute an offer - merely an ITT.
GIBSON V MANCHESTER CITY COUNCIL =
Policy of selling council houses. Council reply “may be prepared to sell” - labour party came into power and changed policy, it was not an offer just an ITT - ‘may’ be prepared.
GRAINGER & SONS V GOUGH =
Price List is not an offer - ITT.
HARRIS V NICKERSON =
An Advert for an auction = ITT.
PHARMACEUTICAL SOCIETY OF GB V BOOTS CHEMIST + FISHER V BELL =
Shop display is an ITT.
AUCTIONS CASES AND FACTS
PAYNE V CAVE =
An offer may be withdrawn at any time before acceptance occurs.
The auctioneer is also entitled to withdraw goods at any time before the hammer falls.
WARLOW V HARRISON =
When without reserve in an auction, (the vender nor any person on his behalf shall bid) - property will be sold to the highest bidder no matter the price.
BARRY V DAVIS =
Sale of 2 machines without reserve, worth 14k each, Barry was highest bidder of 200 each - auctioneer took the goods out of sale and refused to sell them. Barry claimed damages and succeeded.
TENDERS CASES AND FACTS
Tenders = builders send in estimates tendering for the business, physical building not planning permission.
A request for tenders (e.g a uni) is an ITT, each building company that submits a price (tender) is making the offer e.g the uni can accept this offer.
CASES:
SPENCER V HARDING =
Holding was making the ITT, spencer made offer, Harding can reject it.
S v HARVELLA INVESTMENTS LTD =
People inviting tenders promised to bind themselves to highest submission - submitted a referential bid - ‘we will offer 111 dollars in excess of whatever they’ve offered’ - they were bound.
AUTOMATIC MACHINES CASES AND FACTS
THORNTON V SHOE LANE PARKING =
‘the offer is made when the proprietor of the machine holds it out as being ready to receive the money. The acceptance occurs when the customer puts his money into the slot’ - Lord Denning.
