The offer Flashcards
Definition of an offer
Clear display of contractual intent, on fixed and clear terms, that once accepted bind the parties.
Definition of an invitation to treat
Inviting offers, a declaration that the party is open to the negotiation process.
How the courts distinguish between an offer and an Invitation to treat
- Objective test on the parties intention
- The use of ‘presumptions’.
The use of ‘presumptions’
- Depending on the particular scenario, the court will start with the general presumption regarding the offer/ invitation to treat distinction.
- Such presumption will be based on by reference to precedent and the legal reasoning in those cases.
- A presumption is not an absolute rule. Whether the presumption will apply will depend on the facts of the particular case.
Pharmaceutical Society of Great Britain v Boots Cash Chemists (1953)
Courts held that the display of goods in a shop is an invitation to treat and not an offer. The customer makes the offer when they present the items at the cash desk.
Lefowitz v Great Minneapolis Surplus Stores Inc (1957) and the advertisement “Saturday 9am sharp. 3 brand new fur coats worth $100. First come first served. $1 each.”
Held that the advertisement was an offer, ‘it was clear and definite, and explicit and left nothing open for negotiation,”
Payne v Cave (1789) (Auctions)
Call for bids - Invitation to treat
Bid - offer
Fall of the hammer - Acceptance
Payne v Cave, when can the offer be withdrawn
The offer can be withdrawn before the acceptance, In the case of an auction the offer can be withdrawn anytime before the hammer has fallen.
Harris v Nickerson (1873)
The advertisement was an invitation to treat. The claimant was unsuccessful in their attempt to claim travel costs incurred on the strength of the advertisement.
A tender
When an individual/ organisation is seeking goods or services, they may request that parties tender that for business
Spencer v Harding
The invitation/ request for tender is usually an invitation to treat.
The party who responds and submits their bid = making an offer.
Which is then accepted or rejected by the requesting party.
Harvey v Facey (1893)
The claimants contracted the defendants and asked for the lowest price at which the defendants would sell ‘bumper hall pen’ (a plot of land).
The defendant replied that the lowest cash price for the bumper hall pen £900. The claimant stated that they agree to buy for £900.
The statement of minimum price was not an offer to sell. No contract was held for the sale of land.
