Week 2 Offer & Acceptance Flashcards
What is the definition of an offer?
An offer is an expression of willingness to contract on specified terms, made with intention that it is to become legally binding as soon as the person to whom it is addressed accepts it.
What is one case on issue: unilateral offers to the world
Carlill v Carbolic Smoke Ball Company (1893): Company claimed carbolic smoke ball could prevent influenza. It was advertised that if anyone used their smoke ball 3 times daily for 2 weeks and in accordance with the printed directions, and still caught influenza, the company would pay that person £100. The advertisement stated the company had deposited £1000 with their bankers. Carlill bought the smoke ball and used it according to the instructions but still caught influenza
What is an invitation to treat?
Invitation to treat: an expression of willingness to enter into negotiations with the other party. There is no intention to be bound.
What is the general rule for displays of good for sale? Give one case and two practical consequences.
Pharmaceutical Society of Great Britain v Boots Cash Chemists (1953): The Court of Appeal in this case had to identify the precise time when a contract was concluded. This required them to decide whether the display of goods on the open shelves in a self-service store amounted to an offer of goods for sale or an invitation to treat. The court held that the display of goods was an invitation to treat. The customer made the offer to buy at the cash desk and the sale was completed when the cashier accepted the offer.
Two practical consequences:
1. Shop does not have to sell the goods at the marked price especially where it has misquoted the price.
2. Buyer cannot insist upon buying a particular item on display even if the shop has run out of stock.
General Rule: All such displays are regarded as invitations to treat.
What is the general rule of advertisements?
General Rule: Invitation to treat, unless there is an intention to be bound.
Give a case of issue: Online advertisements and one exception.
Chwee Kin Keong and others v Digilandmall.com Pte Ltd (2004): Similar principles apply to electronic trading on the Internet or e-commerce. Advertisements posted on a website amount to invitations to treat.
Exception: However, cannot rule out the possibility of the advertisement constituting an offer rather than an invitation to treat. Esp. when the buyer is guided on screen step by step by the seller until he clicks “I accept” and pays the purchase price online. Key element: intention of the parties.
What is the general rule of Auction Sales?
General Rule: the call for bids by the auctioneer is an invitation to treat. The bids made by those present at the auction are offers. Offer is accepted with the fall of the hammer.
Give an exception case to the auction sales general rule
Warlow v Harrison (1895): Advertising that an auction will be “without reserve” amounts to an offer by the auctioneer that once the auction has commenced, the lot will be sold to the highest bidder however low the bids may be
What is ETA s11 - 14?
- s11 ETA:
For the avoidance of doubt, it is declared that in the context of the formation of contracts, an offer and the acceptance of an offer may be expressed by means of electronic communications. - S12 eta:
a declaration of intent or other statement shall not be denied legal effect, validity or enforceability solely on the round that it was made electronically.
S13 ETA:
Postal Acceptance Rule (Not instantaneous):
When is an electronic record deemed to be despatched?
* s13.(1) The time of despatch of an electronic communication is —
- (a) the time when it leaves an information system under the control of the originator or of the party who sent it on behalf of the originator; OR
- (b) if the electronic communication has not left an information system under the control of the originator or of the party who sent it on behalf of the originator, the time when the electronic communication is received.
General Receipt Rule (Instantaneous):
When is an electronic record deemed to be received?
* s13(2) The time of receipt of an electronic communication is the time when the electronic communication becomes capable of being retrieved by the addressee at an electronic address designated by the addressee.
- s13(3) The time of receipt of an electronic communication at an electronic address that has not been designated by the addressee is the time when the electronic communication becomes capable of being retrieved by the addressee at that address and the addressee becomes aware that the electronic communication has been sent to that address
- s13(4) For the purposes of subsection (3), an electronic communication is presumed to be capable of being retrieved by the addressee when it reaches the electronic address of the addressee.
NOTE: if email/sms/messaging is considered as instantaneous, need to consider the exceptions stated by Lord Wilberforce in Brinkibon v Stahag Stahl (1983) (pg.186) 7.55
WHERE is an electronic record deemed to be despatched and received?
* s 13(5) An electronic communication is deemed to be despatched at the place where the originator has its place of business and is deemed to be received at the place where the addressee has its place of business.
- s14. A proposal to conclude a contract made through one or more electronic communications which is not addressed to one or more specific parties, but is generally accessible to parties making use of information systems, including a proposal that makes use of interactive applications for the placement of orders through such information systems, is to be considered as an invitation to make offers, unless it clearly indicates the intention of the party making the proposal to be bound in case of acceptance.
