offer and acceptance analysis

Question 1

What is the classic method courts use to determine if there is consensus in idem?

Answer 1

Courts look for an offer plus an acceptance, which together form a contract.

Question 2

How did Stair (Institutions, I.10.6) describe the formation of a contract?

Answer 2

Stair said, “An offer accepted is a contract, because it is the deed of two, the offeror and the acceptor.”

Question 3

What is the definition of an offer?

Answer 3

An offer is a statement of terms which the offeror proposes to the offeree as the basis of an agreement (15 Stair Memorial Encyclopedia, para 62).

Question 4

What is a key feature of a valid offer?

Answer 4

The offer must contemplate that an unqualified acceptance will create legally binding obligations (William Lippe Architects Ltd v Innes [2006] CSOH 182A).

Question 5

What essential elements should be identifiable from an offer?

Answer 5

At least the subject matter and the price should be identifiable.

Question 6

Why must an offer be communicated to the offeree?

Answer 6

Because an offer is nothing until it is communicated; the offeree must know about the offer to accept it (Thomson v James (1855) 18 D 1, per Lord President MacNeill).

Question 7

Can an offer be made to a specific person?

Answer 7

Yes, and in such cases, only that specific person can accept the offer (Fleming Buildings Ltd v Forrest [2010] CSIH 8).

Question 8

Can an offer be made to the whole world?

Answer 8

Yes, offers can be made to the whole world — and special rules apply for how acceptance is communicated in such cases.

Question 9

When can an offer be revoked?

Answer 9

An offer can be revoked at any time before the offeree’s acceptance is communicated to the offeror (McMillan v Caldwell 1991 SLT 325).

Question 10

Are there any formalities required to revoke an offer?

Answer 10

No, revocation does not need to comply with any formalities.

Question 11

What happens if a time limit for acceptance is set in an offer?

Answer 11

The offer lapses when the time limit expires (Flaws v International Oil Pollution Compensation Fund 2002 SLT 270).

Question 12

What happens if there is no time limit for acceptance?

Answer 12

The offer will lapse after a reasonable period of time has passed (Glasgow Steam Shipping Co. v Watson (1873); Wylie and Lochhead v McElroy and Sons (1873)).

Question 13

What if the offeror promises to keep the offer open for a certain time?

Answer 13

If an offeror promises to keep the offer open, they are bound by that promise (Paterson Ltd. v Highland Railway Co. 1927 SC (HL) 32).

Question 14

Is a unilateral promise considered an offer?

Answer 14

No, a unilateral promise is not an offer because it does not require acceptance.

Question 15

Are replies to a request for information or an enquiry considered an offer?

Answer 15

No, replies to a request for information or an enquiry are not offers (Harvey v Facey [1893] A.C. 552).

Question 16

Is a party’s recap of its negotiating position considered an offer?

Answer 16

No, recapping a negotiating position is not an offer (Glasgow City Council v Smith [2015] CSOH 143).

Question 17

What is an invitation to treat (ITT)?

Answer 17

An invitation to treat is an invitation for others to make an offer; it is not itself an offer.

Question 18

Is displaying goods in a shop window an offer?

Answer 18

No, displaying goods in a shop window is an ITT, not an offer (Fisher v Bell [1961]).

Question 19

Is displaying goods on supermarket shelves an offer?

Answer 19

Probably not; goods on supermarket shelves are usually an ITT (Pharmaceutical Society of Great Britain v Boots [1953]).

Question 20

Are auctions and invitations to tender considered offers?

Answer 20

No, putting items up for auction or inviting tenders are examples of ITTs.

Question 21

Are automated machines like vending machines an ITT?

Answer 21

No, automated machines are probably considered a standing offer, not an ITT (Thornton v Shoe Lane Parking [1971]).

Question 22

Are advertisements considered offers?

Answer 22

Generally no; advertisements are presumed to be ITTs (Fenwick v Macdonald Fraser & Co Ltd [1904]).

Question 23

Can an advertisement ever be treated as an offer?

Answer 23

Yes, an advertisement can exceptionally be treated as an offer if it is clear and definite (Carlill v Carbolic Smoke Ball Co. [1893]).

Question 24

What are the three stages of exercising the will according to Stair?

Answer 24

• Desire: Tendency towards an object (not enough for obligation).
• Resolution: Decision to act (still not enough, can be changed).
• Engagement: Commitment made to another party (creates obligation).

Question 25

Why are replies to requests for information, negotiating recaps, and general enquiries not considered offers?

Answer 25

Because they represent only desire or resolution, not engagement — they do not communicate a binding commitment to another party.

Question 25

Which stage must a person reach to create a binding legal obligation?

Answer 25

The person must reach the engagement stage — where they communicate a commitment to another party.

Question 26

What is an example that illustrates Stair’s theory in modern practice?

Answer 26

In online shopping, the retailer’s website usually constitutes an invitation to treat, and the customer makes the offer by clicking "buy."

Question 27

What is an acceptance according to MacQueen and Thomson?

Answer 27

Acceptance is the final unqualified assent by the offeree to the terms stipulated in the offer.

Question 28

Until when can an offer be accepted?

Answer 28

An offer can be accepted as long as it remains open and has not been revoked.

Question 29

When can an offer be revoked?

Answer 29

An offer can be revoked at any time before the acceptance is communicated by the offeree.

Question 30

What must the words or conduct of the offeree indicate for a valid acceptance?

Answer 30

They must show a clear and unqualified acceptance of the offer’s terms.

Question 31

What happens if the offeror prescribes a method of acceptance?

Answer 31

The offeree must follow the prescribed method of acceptance for it to be valid.

Question 32

How must an offeree show that they have accepted an offer?

Answer 32

The offeree must do or say something that a reasonable observer would interpret as acceptance (Sabre Leasing Ltd v Copeland 1993 S.C. 345).

Question 33

Does silence or inaction normally count as acceptance?

Answer 33

No, silence or inaction generally does not constitute acceptance.

Question 34

Can an offeror stipulate that silence will be taken as acceptance?

Answer 34

No, an offeror cannot require that silence will amount to acceptance (Higgins v Wilson & Co (1848)).

Question 35

Are there any circumstances where silence can amount to acceptance?

Answer 35

Yes, in rare cases, if the surrounding circumstances make it clear that silence evidences an intention to be bound (Shaw v James Scott Builders and Co. [2010]).

Question 36

What is the postal rule in contract law?

Answer 36

The postal rule says that the posting of an unqualified acceptance creates the contract, not the delivery of the letter containing the acceptance (Jacobsen Sons and Co v Underwood and Son Ltd. 1894).

Question 37

What effect does the postal rule have on the offeror?

Answer 37

Once the acceptance is posted, the offeror cannot withdraw their offer (Thomson v James (1855)).

Question 38

Does the postal rule apply to forms of communication other than post?

Answer 38

No, the postal rule applies only to postal acceptances and does not apply to offers, counter-offers, or withdrawals of offers (Carmarthen Developments Ltd. v Pennington [2008]).

Question 39

Can the postal rule be applied to faxes, telex, or emails?

Answer 39

No, the postal rule does not apply to non-postal communications, such as faxes, telex, or emails (Park, Petitioners (No 2) 2009 SLT 871; Entores Ltd. v Miles Far East Corp [1955]).

Question 40

What has the Scottish Law Commission recommended regarding the postal rule?

Answer 40

The Scottish Law Commission has recommended abolishing the postal rule and replacing it with a rule where acceptance is effective when communicated, but the offer cannot be withdrawn in the time between dispatch and arrival of the acceptance.

Question 41

What are the three possible responses to an offer?

Answer 41

1. "Yes" – Acceptance, which concludes the contract. 2. "No" – Rejection, which terminates the offer. 3. "Yes, but" – Qualified acceptance, which is a counter-offer.

Question 42

What happens if you reject an offer?

Answer 42

If you reject an offer, you kill the offer. You cannot accept the offer after rejecting it.

Question 43

What is a qualified acceptance?

Answer 43

A qualified acceptance occurs when you accept an offer with changes to its terms. For example, agreeing to sell a book for £11 instead of £10.

Question 44

What happens when a qualified acceptance is made?

Answer 44

A qualified acceptance is not an acceptance at all; it is treated as a counter-offer. The original offer is no longer valid.

Question 45

What happens when an offer is met with a qualified acceptance or counter-offer?

Answer 45

A qualified acceptance (counter-offer) rejects the original offer, making it no longer available for acceptance. The counter-offer itself becomes a new offer that the original offeror can accept.

Question 46

What does a counter-offer do to the original offer?

Answer 46

A counter-offer rejects the original offer, meaning it is no longer capable of being accepted, even if the offeree later changes their mind.

Question 47

What does a counter-offer become?

Answer 47

A counter-offer becomes a new offer that is open for acceptance by the original offeror.

Question 48

Can offers coexist without rejecting each other?

Answer 48

Yes, in Findlater v Maan (1990), the court held that two offers could co-exist at the same time without one rejecting the other. Both offers existed independently, and neither superseded the other.

Question 49

What is the de minimis rule in contract law?

Answer 49

The de minimis rule suggests that trivial changes to the terms of an offer are not likely to constitute a qualified acceptance, as these minor changes are not significant enough to alter the essence of the offer.

Question 50

Is there consistency in case law regarding trivial changes and qualified acceptances?

Answer 50

No, case law is not consistent on whether a trivial change constitutes a qualified acceptance. Different cases have produced varying interpretations of such changes.

Question 51

What did Erskine v Glendinning (1871) say about trivial changes to an offer?

Answer 51

In Erskine v Glendinning (1871), Lord President Inglis stated that a minor addition to an acceptance, which does not require the offeror's consent, does not constitute a condition, and the landlord was entitled to request a formal lease to embody the terms of their contract.

Question 52

What did Stobo Ltd v Morrison’s (Gowns) Ltd (1949) say about changes in an acceptance?

Answer 52

In Stobo Ltd v Morrison’s (Gowns) Ltd (1949), Lord President Cooper explained that stipulating an agreement be embodied in a formal contract does not necessarily mean the parties are still in the negotiation stage. An acceptance cannot be read as conditional merely because the acceptor uses words that imply a formalization of the agreement.