Offer and Acceptance

Question 1

Clark (definition of offer)

Answer 1

“an offer is a clear unambiguous statement of the terms to which the first party is willing to contract”

Question 2

Clifton v Palumbo

Answer 2

Essential elements

“prepared to make an offer” insufficient

Question 3

Gibson v Manchester City Council

Answer 3

Essential elements

“may be prepared to sell” insufficient

Question 4

Treitel (commentary)

Answer 4

objective - “apparent intention to be bound may suffice”

Question 5

Storer v Manchester

Answer 5

Intention to offer

dont look at the intent but what the offerer said and did

Question 6

Lefkowitz v Great Minneapolis Surplus Store

Answer 6

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.

Question 7

Tolan v Connacht Gold

Answer 7

Intention to offer

objective not subjective

Question 8

Carlill v Carbolic Smoke Ball

Answer 8

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

Question 9

Billings v Arnott

Answer 9

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’

Question 10

Tansey v OTs

Answer 10

Unilateral offers

Cannot be held to an offer they were unaware of

Question 11

Molloy (commentary invitations to treat)

Answer 11

Invitations to treat

“preliminary offers which bring about contractually binding offers when responded”

Question 12

Carlill v Carbolic Smoke Ball

Answer 12

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

Question 13

Leonard v PepsiCo

Answer 13

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

Question 14

Fisher v Bell

Answer 14

Invitations to treat - display

shopkeeper – display knife in shop window – Held: display- invitation to treat thus no breach of legislation to sell knives

Question 15

Pimbros

Answer 15

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

Question 16

Clark (commentary on display of products)

Answer 16

“rule protects shopkeepers who would otherwise be obliged to sell goods to anyone who saw them in the window”.

Question 17

Harvey v Facey

Answer 17

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

Question 18

Dooley v Egan

Answer 18

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.

Question 19

Carroll v An Post

Answer 19

Invitations to treat - lotteries

lottery payslip in Ireland is an offer accepted by adhering to rules

Question 20

McDermott (commentary on auctions)

Answer 20

by commencing an auction, ‘the auctioneer is making a unilateral offer to all bidders he will sell to the highest bona fide bidder.’

Question 21

Barry v Davies

Answer 21

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

Question 22

Warlow v Harrison

Answer 22

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

Question 23

Tully v Irish Land Commission

Answer 23

Invitations to treat - auctions

Using ‘without reserve’ in auction creates a unilateral offer to bidders the sale will go to the highest bidder

Question 24

Friel (tender commentary)

Answer 24

“Tenders are little more than written auctions”

Question 25

Spencer v Harding

Answer 25

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

Question 26

Molloy (tender commentary)

Answer 26

‘it is merely an ‘attempt to see if a suitable offer can be drawn from the public.’

Question 27

Guardian of the Navan Union v McLoughlin

Answer 27

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.

Question 28

Howberry v Telecom

Answer 28

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

Question 29

Smart Telecom v RTE

Answer 29

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.’

Question 30

Henthorn v Fraser

Answer 30

Revocation of bilateral offers

contract is formed on the posting of letter of acceptance a revocation
letter is not effective until it is received

Question 31

Dickinson v Dodds

Answer 31

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

Question 32

Daulia v Four Millbank Nominees

Answer 32

Revocation of unilateral offers

Held OBITER once offeree embarks on performance offer is irrevocable

Question 33

Errington v Errington

Answer 33

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

Question 34

Parkgrange Investments v Shandon Park

Answer 34

Termination - delay

Carrol J: where no express deadline, acceptance
must take place within a reasonable time which will be judged objectively for each case

Question 35

Ramsgate Victoria Hotel v Monterfiore

Answer 35

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

Question 36

Dooley v Egan

Answer 36

Termination - delay

‘immediate acceptance’ requires swift response

Question 37

Re Whelan

Answer 37

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

Question 38

McDermott (counter offers)

Answer 38

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.’

Question 39

Hyde v Wrench

Answer 39

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

Question 40

Swan v Miller

Answer 40

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

Question 41

Gibson v Lakeside

Answer 41

Counter offers

correspondence specifying a different payment date can constitute counter offer

Question 42

Stevenson, Jacques v McLean

Answer 42

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.

Question 43

Friel (acceptance definition)

Answer 43

’ a response to an offer which completes a contract’

Question 44

Parkrange v Shandon

Answer 44

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

Question 45

Bulter Machine Tool

Answer 45

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

Question 46

Chichester v Mowlem

Answer 46

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

Question 47

Borgden v Metropolitan Railway

Answer 47

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

Question 48

Anglia TV v Clayton

Answer 48

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

Question 49

Russel & Baird v Hoban

Answer 49

Silence - not accepted

contract which stated if no response acceptance is presumed – court held there as no contract

Question 50

Carlill v Carbollic Smoke Machine

Answer 50

Communiation of acceptance

not only does a contract need to be accepted to be valid – ‘the acceptance should be notified.’

Question 51

Tinn v Hoffman

Answer 51

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

Question 52

Mondial shipping

Answer 52

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

Question 53

Ryanair v Billigfluege

Answer 53

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

Question 54

Thomas v BPE Solicitors

Answer 54

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

Question 55

Lord Denning (comment on modern offer and acceptance)

Answer 55

– 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.’