Offer and Acceptance Flashcards
Clark (definition of offer)
“an offer is a clear unambiguous statement of the terms to which the first party is willing to contract”
Clifton v Palumbo
Essential elements
“prepared to make an offer” insufficient
Gibson v Manchester City Council
Essential elements
“may be prepared to sell” insufficient
Treitel (commentary)
objective - “apparent intention to be bound may suffice”
Storer v Manchester
Intention to offer
dont look at the intent but what the offerer said and did
Lefkowitz v Great Minneapolis Surplus Store
Intention to offer
advert to sell fur stoles at one dollar on a first come first serve basis – customer was refused sale as told only meant for women
HELD: court refused, the advert was ‘clear, definite and explicit’ and left ‘nothing open for negotiation’ thus was a valid offer.
Tolan v Connacht Gold
Intention to offer
objective not subjective
Carlill v Carbolic Smoke Ball
Unilateral offers
medicine, smoke ball, advertisement stated any person who
caught influenza be paid 100 – 1000 in bank as mark ‘of manufacturer’s sincerity’ - P caught influenza sought 100 – company said no offer, ‘mere puff’ – court refused
Billings v Arnott
Unilateral offers
employer notice to offer half salaries to any employee who joins defence forces – p joined – company said no as other employee already joined
HELD: Court held offer was clear and precise – the notice was ‘unconditional’
Tansey v OTs
Unilateral offers
Cannot be held to an offer they were unaware of
Molloy (commentary invitations to treat)
Invitations to treat
“preliminary offers which bring about contractually binding offers when responded”
Carlill v Carbolic Smoke Ball
Invitations to treat - ads
advertisement for medicine – stated on advertisement if got sick would get 100 payment
-D company deposited 1k in separate bank account for this
-Carlill got sick and sought the payment – they said it was an advertisement not
intended to be binding
-HELD: exhibited an intention to be bound by the terms – crucial point was the
putting of money into separate account - turned an advertisement into a unilateral
offer as mere invitation to treat
Leonard v PepsiCo
Invitations to treat - ads
Promotional pepsi campaign for prizes in catalogue exchange for pepsi points – in advertisement shows fighter plane for 7m points – not in catalogue - extra points for 10c each – P gave cheque 700k and claim for plane
-Held: Wood J in absence of clear intention to be bound advertisements are mere
invitations to treat.
- Objective focus: Court held no reasonable person could have believed advertisement actually offered plane
Fisher v Bell
Invitations to treat - display
shopkeeper – display knife in shop window – Held: display- invitation to treat thus no breach of legislation to sell knives
Pimbros
Invitations to treat - display
shopkeeper display sale of coat on credit without credit terms shown –breach of legislation to sell products on credit without terms set out with offer -Held: No breach as display of goods is not an offer to sell
Clark (commentary on display of products)
“rule protects shopkeepers who would otherwise be obliged to sell goods to anyone who saw them in the window”.
Harvey v Facey
Invitations to treat - quotes/enquiries
plaintiff requested lowest price for property which defendant replied with price – p said they would pay – def refused and p sued for specific performance – there was no offer to sale, merely an indication of price
Dooley v Egan
Invitations to treat - quotes/enquiries
words may turn a quotation into an offer:
- Plaintiff letter enclosed list of goods for certain prices with quotation for ‘immediate acceptance only’ -plaintiff argued this was invitation to treat – court held no, use of words ‘immediate acceptance only’ changed nature of quotation making it an offer capable of acceptance.
Carroll v An Post
Invitations to treat - lotteries
lottery payslip in Ireland is an offer accepted by adhering to rules
McDermott (commentary on auctions)
by commencing an auction, ‘the auctioneer is making a unilateral offer to all bidders he will sell to the highest bona fide bidder.’
Barry v Davies
Invitations to treat - auctions
Auctioneer put machines up without reserve price – refused to sell on highest offer made by p and withdrew from auction – then sold on through magazine advert
- Issue: Does holding of an auction without reserve price amount to a contractually binding offer to sell property to highest bidder?
- Held: Yes – Auctioneer acts as agent of the owner in the formation of contract with highest bidder – consideration in form of detriment to bidder – benefit to auctioneer as no reserve may increase attendance – P awarded damages
Warlow v Harrison
Invitations to treat - auctions
Auctions advertised without reserve create a binding offer to sell to the highest bona fide bidder even if amount does not meet the real value
Tully v Irish Land Commission
Invitations to treat - auctions
Using ‘without reserve’ in auction creates a unilateral offer to bidders the sale will go to the highest bidder
Friel (tender commentary)
“Tenders are little more than written auctions”
Spencer v Harding
Invitations to treat - tenders
Advertisement for tenders contained no promise to sell stock to highest bidder therefore there is no obligation to sell to the highest bidder
Molloy (tender commentary)
‘it is merely an ‘attempt to see if a suitable offer can be drawn from the public.’
Guardian of the Navan Union v McLoughlin
Invitations to treat - tenders
Must communicate acceptance of tender
Plaintiff placed tender advertisement which the D sent in a tender – Ps accepted this at board meeting – no communication to D – D informed P in debt – conveyed to P pre-pay month of payment – no reply thus no performance of contract – Ps sued
- HELD: One party cannot accept tender proposal of another without communicating
to that person it has been accepted – ‘he must by some act, binding on himself… communicate his acceptance’ – thus no contract existed.
Howberry v Telecom
Exceptions to tender rules - referential bids
Plaintiff made highest bid for cable link but it was referential bid that won out – sought mandatory injunctive relief – refused
-Held: Contract terms expressly stated vendors are under no obligation to accept highest bid or any bid at all – thus could accept referential bid
Smart Telecom v RTE
Exceptions to tender rules - referential bids
RTE invited parties to submit tenders for sponsorship of weather forecast – RTE held contract would be awarded to highest bidder – Glanbia gave highest offer, Smart gave referential bid above highest price given – Glanbia got contract – Smart sought specific performance
-HELD: an invite to seek tenders is an invitation to treat – however, as in this case, where the inviter states contract will be given to highest bidder, ‘the position at law is different and contractual rights may flow from such an invitation.’
-For referential bids to be accepted must be ‘express provision in the invitation permitting such bids.’
Henthorn v Fraser
Revocation of bilateral offers
contract is formed on the posting of letter of acceptance a revocation
letter is not effective until it is received
Dickinson v Dodds
Revocation of bilateral offers
Must be communicated to offeree:
- Vendor offered to sell house which offer remained open for set time – before end of time purchaser heard from third party it may be sold to another – p sought to purchase house – the court held the offer had been successfully revoked as the p knew from a third party that the offer to him had been revoked
- Held: James LJ – no meeting of the minds
- Criticised: McDermott – leaves offerees ‘bound by gossip’
- Friel argues sound jurisprudential reasons for requiring revocation to come from offeror
Daulia v Four Millbank Nominees
Revocation of unilateral offers
Held OBITER once offeree embarks on performance offer is irrevocable
Errington v Errington
Revocation of unilateral offers
father told son and daughter-in-law after paying 1/3 house, if they
paid for balance he would convey house to them – it was held once the couple began paying instalments offer was irrevocable
-No Irish Authority – Errington is persuasive
Parkgrange Investments v Shandon Park
Termination - delay
Carrol J: where no express deadline, acceptance
must take place within a reasonable time which will be judged objectively for each case
Ramsgate Victoria Hotel v Monterfiore
Termination - delay
Offer to purchase shares in June not accepted until November – def said offer lapsed by delay – court agreed – share prices very unsteady, delay excessive – case emphasises context is key in delay cases
Dooley v Egan
Termination - delay
‘immediate acceptance’ requires swift response
Re Whelan
Termination - death
Whelan personally guaranteed current account of firm – died – bank unaware until some months later – court held guarantee ceased once bank had knowledge of Whelan’s death
McDermott (counter offers)
if the response to an offer is anything less than a clear and unequivocal acceptance of the exact terms of the offer…then the response will be seen as a counter offer.’
Hyde v Wrench
Counter offers
d offered to sell farm 1000k – p said willing pay 950k – this creates new offer, cancelling first offer – d refused – p then accepted first offer – offer no longer existed as second offer cancelled it
Swan v Miller
Counter offers
P offered to buy premises for sum – D replied accepting ‘plus rent’ –
no contract as vendor had imposed new term creating new offer
Gibson v Lakeside
Counter offers
correspondence specifying a different payment date can constitute counter offer
Stevenson, Jacques v McLean
Meere enquiry
D offered to sell goods at rate – P questioned whether they would accept additional terms – no reply – P accepted original offer – D refused on basis correspondence was counter-offer – court held no it was a mere enquiry.
Friel (acceptance definition)
’ a response to an offer which completes a contract’
Parkrange v Shandon
Facts of acceptance
vendor of property signed contract to obtain a capital gains tax. certificate, had no intention to accept purchasers offer – therefore invalid acceptance
Bulter Machine Tool
Battle of forms
seller selling machinery for price on standard form which had a price variation clause – buyer responded with its standard form, no such clause, included slip to be returned if accepted – seller returned slip
Chichester v Mowlem
Battle of forms
Battle of form cases – last party who sends form which is accepted without objection will win out
-Mowlem made purchase order with own t&cs – Chichester didn’t sign this, sent back its own form acknowledging sale subject to own t&cs – this was impliedly accepted by Mowlem – Contract held on Chichester’s terms
Borgden v Metropolitan Railway
Acts of acceptance - unilateral
P supplied D with coal for long time – D put it into formal contract – P amended, signed and returned (offer) – D never finalised – continued to get coal in a/c to contract
- Issue: was there a contract? Yes – by continuing to receive the coal D had tacitly accepted the contract
Anglia TV v Clayton
Acts of acceptance - unilateral
two factors must be present for acceptance via conduct:
1. Must be a clear and unambiguous offer which exists in a form capable of being accepted
2. Must be some form of subsequent conduct by way of acceptance that is applicable exclusively to the offer
Russel & Baird v Hoban
Silence - not accepted
contract which stated if no response acceptance is presumed – court held there as no contract
Carlill v Carbollic Smoke Machine
Communiation of acceptance
not only does a contract need to be accepted to be valid – ‘the acceptance should be notified.’
Tinn v Hoffman
Communication of acceptance
offeree told to reply by post – court held any reply in a similarly expedient manner is acceptable unless the offeror said specifically communication only by post
Mondial shipping
Communications of acceptance - instant forms of communication
telex sent outside business hours can’t be deemed to be
accepted until start of next working day where intended recipient could be reasonably expected to have viewed it
Ryanair v Billigfluege
Modern day - offer and acceptance
HC: acceptance of Ryanair’s T&Cs by accessing on their website
Websites = display of goods/ advertisements – invitations to treat
- Offer = customer ordering goods
- Acceptance = web merchant accepting payment
Thomas v BPE Solicitors
Modern day - offer and acceptance
applied Brinkibon and Entores – email accepting offer at 6pm – Court held acceptance via email not effective until next working day
Lord Denning (comment on modern offer and acceptance)
– traditional analysis of offer and acceptance etc… is out of date… ‘better way is to look at all the documents passing between the parties and glean from them whether they have reached an agreement.’
