Introduction The law of contract is about the enforcement of promises. Not all promises are enforced by courts.

ts. To enforce a set of promises, or an agreement, courts look for the presence of certain elements.

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Offer
Definition Professor Treitel An offer is an expression of willingness to contract on certain terms. It must be made with the intention that it will become binding upon acceptance. There must be no further negotiations re uired.

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Intention Offeror may no intend to give offer and in fact there is "alid offer #alid Storer v Manchester City Council $1%&'( o F D)*anchester +ity +ouncil decided to sell house that it owned to sitting P. +ouncil sent, ,I understand you wish to buy the house and I enclose the Agreement for -ale. If you sign and return to me, I will send you the agreement signed on behalf of us.. P sign the document and return it o ! "rgument #y $%s counsel, council had no intention to be bound. &ord $enning In contract' you do not loo( the actual intent of one man #ut from what he said or did) " man cannot escape from contract #y saying *did not intend to contract% #y this way) -o, there is binding contract

/ffer is interpreted by an o#+ective inference It is not the sub0ecti"e intentions of the parties that determine the legal effect of their words or actions The interpretation the reasona#le person in the position of the offeree would place upon the statement or action of the offeror.

Offeror may no intend to give offer and in fact there is no valid offer

N. "alid

,i#son v Manchester City Council $1%&%( 1/2 ! o the +ouncil stated that the ,may be prepared to sell. the house to him. o 3ibson signed the document and returned it. o The 1ouse of 2ords held that a contract had not been concluded because the +ouncil had not made an offer capable of being accepted. o 2ord Diplock stated4 The words ,may be prepared to sell. are fatal, it is only in"itation to treat which ask P to make offer to buy It is up to D to consider after P make the offer.

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/fferee know or N. #alid ought to know there is no "alid offer but accept

Subjectivity important in the offerees know or ought to know !artog v Colin - Shields 1%5% o 64 D $offeror( offer hare skin . There is always sale in per piece *istakenly they offer to P sale in per pound instead $there was e7pert e"idence that hare skin generally sold in per piece( P $offeree( sue for loss o 14 P $offeree( could not reasonably suppose the offer contained the offeror.s real intention. There is no binding contract Centrovincial .states v /MI"C0 Merchant Investors "ssurance Company 1%85 +/A o 64 /fferor let premise to /fferee for rental 9:85!; /fferee recei"e a letter of a rent figure of 9:<;;; and accept it 6igure ha"e been offered in error -hould be 91!:,;;; /fferor inform /fferee after recei"e reply of acceptance /fferee wants to hold on 9:<;;; /fferor sue /fferee $there is no e"idence show that offeree know or ought to be know there is error initially( o 14 There is binding agreement on :<;;; =eason4 There is "alid offer and acceptance there is no proof of /fferee either know or ought to reasonably know the /fferor.s error. >nglish law, offer not determined by what come across from /fferor.s mind but ob0ecti"ely by refer to a reasonable man as offeree will understand that offer. $If P ?offeror@ can pro"e D ?offeree@ either know or ought to be know there is error, then P should win the case, so the burden to proof offeree.s mind rest on offeror side(

No e"idence show offeree know or ought to be know the "alidity of offer and accept

#alid

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Typical /b0ecti"e test e7ample Introduction the courts ha"e laid down a strict rule that a person who signs a contractual document is bound by its terms whether or not they ha"e understood the document, or whether or not they ha"e e"en read it + did not read the document and signed which in fact not what he want ,al#raith v Mitchenall .states &td 1%:< Aithout reading the document, the claimant signed a contract with the defendants in the mistaken belief that it was a hire)purchase agreement under which he would ultimately ac uire ownership of a cara"an. It was in fact a contract of hire for a term of fi"e years but the defendants had not misrepresented the effect of the document nor acted improperly in any other way. The claimant fell into arrears with the rental payments and, relying on the terms of the contract, the defendants repossessed the cara"an and retained the initial payment of <<;. The "alue of the cara"an was appro7imately 8;;. The claimant sought to reco"er the initial payment The action failed) it was held by -achs.B, that the claimant was #ound #y the agreement despite' as the court ac(nowledged' the undue harshness of its terms #alid

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Term No clear term in offer N. #alid ,i#son v Manchester City Council $1%&%( 1/2 ! o the +ouncil stated that the ,may be prepared to sell. the house to him. o 3ibson signed the document and returned it. o The 1ouse of 2ords held that a contract had not been concluded because the +ouncil had not made an offer capable of being accepted. o 2ord Diplock stated4 The words ,may be prepared to sell. are fatal, it is only in"itation to treat which ask P to make offer to buy It is up to D to consider after P make the offer.

+lear term

#alid

Storer v Manchester City Council $1%&'( +/A 14 o there was a binding contract. o +ouncil sent, ,I understand you wish to buy the house and I enclose the Agreement for -ale. If you sign and return to me, I will send you the agreement signed on behalf of us.. o -torer bind himself to the sale $Acceptance(4 sign the document and return it, so, form a contract. o +ouncil bound to send back the agreement after P sign the document.

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1oom for negotiated In Storer.s case there was an agreement. $e"ery terms listed is "ery clear ?not noted here@ so, no more room to negotiate( Cut in ,i#son.s case, important terms still needed to be determined $terms and condition not yet fully listed, that why still room for negotiate(.

-upply info4 lowest price is %;;

N. #alid

!arvey v Facey $18%5( o 6 P sent to D4 ,will you sell us Pen $(D Telegraph the lowest price. D reply4 ,2owest price for the Pen is %;;. P reply4 ,Ae agree to buy the Pen for %;; asked for you. D didn.t reply o 14 No contract =eason4 first telegraph by P only in uiry whether D willing to sell, if so at what price. D.s response not an offer to sell but answer to the price in uiry. Mere statement of lowest price did not form an offer to P 6inal telegraph therefore is offer but not acceptance n it is not accepted by D. -o, no contract

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6or a uick saleD

Statement of price considered offer 2igg v 2oyd ,i##ins 1%&& F o P wrote to D4 your offer of !;;;; appear little optimistic. For a 3uic( sale' I will accept 45666 o D reply4 7My wife and I are #oth pleased that you are purchasing the property8 o D ask P to contact D.s solicitor o P reply4 Ae are pleased that you are purchasing the property ! Agreement to the price no necessary mean the agreement on sales and purchase ,/ffer. is a term may related the negotiation continue 2ut from the end of the correspondence , both parties had an agree for the sale and purchase of the property I stress the words 7*for a 3uic( sale I would accept 945'666EF that is to say4 Gfor a uick sale to youF $ob"iously( GI would accept an offer to buy the property for H!:,;;;.F 7My wife and I are #oth pleased that you are purchasing the property8 : not 7may #e purchasing)8 It seems to me that in fact I and I am not dissuaded by the Pri"y +ouncil case of 1ar"ey ". 6acey 6irst letter regarded as offer, and D show acceptance No further negotiation needed

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ITT;Offer Introduction4 ITT /ne party states that he intends to do something. This differs from an offer ) he will do something. An ITT is an indication of a willingness to conduct business. It is an in"itation to another to make an offer or negotiations.

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$isplay of goods /ITT0 3rocery goods on rack ITT Pharmaceutical Society v 2oots $1%<5( F o Action between P, professional association of pharmacist and D, self ser"ice pharmacy. o D charged with offence under section 18$1( of the Pharmacy and Poison Act 1%55 re uire sales of poison take place under super"ision of registered pharmacist. o Issue for court whether the sales was under super"ision of registered pharmacist while pharmacist at the cash desk o o o o o o !4 Cy +/A and +ourt of JC $confirm by +/A(4 >7poses good to public is willing to treat $ITT( but not offer to sell +ontract form when shopkeeper accept customer.s offer to #uy <o sale until buyer.s offer to buy accepted by acceptance of purchase price Pharmacist at the cash desk where money to be paid -o under super"ision, no offence occur

o 1eason why ITT4 $isadvantage for shop(eeper If that is offer, then shop)keeper has no choice if customer insist to ha"e that good display e"en undesirable In this case, pharmacist then has no power not to sell the drug $howe"er, incorrect pricing may lead to criminal liability( $isadvantage for Customer If that is offer, then customer bound to buy e"erything he picked which he cannot change his mind later +ustomer can free to choose in self)ser"ice >g, in bookstore, customer normally pick and look b' buy it

+ontrast &as(y v .conomy ,rocery Store 1%': $6oreign +ase( 14 Display of goods as offer and acceptance only occur at cashier Fisher v 2ell It is perfectly clear that according to the ordinary law of contract the display of an article with a price on it in a shop window is merely an in"itation to treat. It is in no sense an offer for sale the acceptance of which constitutes a contract. That is clearly the general law of the country) Thornton v Shoe &ane Par(ing $1%&1( F4 *achine of entry car park. Transaction thru machine. !4 Automatic machine constitute standing offer as soon as machine acti"ated. 1eason4 No more room for negotiate with the machine. +ontract formed when money insert into machine $acceptance( +ustomer cannot claim to get the money back after that as contract is formed

3oods on /ffer *achineD

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$applied the same to petrol station( "dvertisement/ITT0 Ad"ertisement about ,birds., price)list of goods ITT Partridge v Crittenden $1%:8( F o D place an ad"ertisement stated4 ,Cramblefinch cocks, bramblefinch hens, !<s each. o A reader to the ad"ertisement, wrote for a hen which D sent to him o D charged under criminal offence that unlawful offer for sale a wild bird contrary to s.:$1( of Protection of Cirds Act 1%<' 14 o +on"iction uashed as ad"ertisement only ITT but not offer the bird for sale. o $1owe"er, D can be charged under ha"ing the wild bird for purpose to sell( o =efer to reasoning ,rainger - Sons v ,ough /price:list of wine04 o The transmission of such a price:list does not amount to an offer to supply an unlimited 3uantity of the wine descri#ed at the price named' so that as soon as an order is given there is a #inding contract to supply that 3uantity) o If it were so' the merchant might find himself involved in any num#er of contractual o#ligations to supply wine of a particular description which he would #e 3uite una#le to carry out' his stoc( of wine of that description #eing necessarily limited)8 o Per 2ord Parker +.B.4 There is business sense in construing ad"ertisements and circulars, as in"itations to treat and not offers for sale unless they come from manufacturers

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Ad"ertisement with all clear terms /ffer Carlill v Car#olic Smo(e 2all Company 18%5 +/A F o D ad"ertise that4 1;;l will be reward to any person contracted influenKa after ha"ing used ball 5 times per day for ! weeks according to direction printing in the ball. 1;;;l is deposited with Alliance Cank showing our sincerity. During last influenKa, no case was disease contracted by those using carbolic smoke ball. o P rely upon the ad"ertisement, purchased and used and get influenKa o P sue for 1;;l. "rgument) Not an offer as too "ague in ad"ertisement. !ow long should it protectD 6ore"erD ! o During the period of epidemic, immunity last when using the ball as stated in ad"ertisement4 ,no case was disease contracted #y those using /#ut not who has used0 car#olic smo(e #all.. o Another 0udge said it should be protect reasonable time after use. o Cut it is no need for this case as P caught influen=a when using the ball o Argument4 Ad"ertisement only a mere puff 14 o 1;;;l deposited in Alliance bank cannot be said as a mere ad"ertisement puff Argument4 >nreasona#le to be an offer as there is no way to gi"e the award to someone that you are unable or need to spend on your own to check whether the someone has performed the re uirement ! o If a person choose to reward an insensate $1;;l is large amount that time( promise, the person may try his best to achie"e the checking process o if a person chooses to make e7tra"agant promises of this kind he probably does so because it pays him to make them, and, if he has made them, the e7tra"agance of the promises is no reason in law why he should not be bound by them. Argument4 /ffer to be wide enough as open to world at large ! o Possible as an offer to e"eryone who perform the condition o -o, it is still limited portion of public. o This is different with the case of ad"ertisement to sell good which able to negotiate

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Argument4 <o <otification of acceptance ! o Notification is necessary to the offeror o Cut someone can make an offer which implied the communication of acceptance is sufficient with performance without communication. o In this type of ad"ertisement, no need inform before performance but after performance that is enough to #e said as acceptance. o >g in finding lost dog case, if someone trying to look for my lost dog, there is no necessary to inform me first. o If they perform the condition4 found the lost dog, then it is sufficient to be regarded as acceptance

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-aturday %am -harp, 5 brand new coat, worth L1;;, 1st /ffer come 1st ser"e, L1 each &ef(owit= v ,reat Minneapolis Surplus Store 1%<& $M-A( F D issue4 -aturday %am -harp, 5 brand new coat, worth L1;;, 1st come 1st ser"e, L1 each P one of 1st three customer D refuse to sell ! It is an unilateral offer $promise to sell at L1 for earliest 5 customers ?an act@( +lear offer and no further negotiations needed D liable for the damage No quantity limited argument, no more for negotiation, so it is offer

leaflet is printed ,Tomorrow only, oranges are at a ITT special low, low price of %pNkilo The grocery shop has not made you an offer. They ha"e made an in"itation to treat. -ee Grainger Son " Gough $18%:( and Partridge " !rittenden $1%:8(. The reason that they have only made an invitation to treat and not an offer is #ecause if the statement in the leaflet is construed as an offer' then the shop would #e #ound to sell to everyone who presented themselves at the shop) +learly, this is impractical and, indeed, may be impossible. +onse uently, if you "isit the shop, they do not need to sell you oranges at this price.

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Tender
P as highest #id in the tender #ut not accepted
Spencer v !arding /18&;( o F A person offer a stock for sale by tender P as highest bid in the tender but not accepted P sue D for not gi"ing to the highest tender o 14 Tender not necessary give to the highest or lowest #idder) In this case, there is absence of word to indicate purchaser should be highest bidder -o, it is not an offer but mere re uest from D to recei"e offer from bidder

ITT

If highest offer is made' they will #ind to accept such offer

Offer

!arvela Investments &td v 1oyal Trust Co of Canada &td $1%8<( o F 1st D owned a block of shares P and !nd D O ri"al bidders for the shares. D 4 If highest offer is made, they will bind to accept such offer P bid !,1&<,;;; and !nd D bid !,1;;,;;; with a referential bid 1;1,;;; e7cess of other any offer 1st D accept !nd D.s offer, treat the bid as !,!&:,;;; P sue 1st and !nd D. o ! There is an implied unilateral contract due to 1 st D promise to accept highest bid. $promise for an act( That mean the highest bidder will make 1st D to be bound to accept his accept. -o, this in"itation to tender is unilateral offer to accept the highest bidder. This was then followed by a synallagmatic $bilateral( contract after the person who in"ite to tender accept the higher bidder. $Cidder promise to offer and the person who in"ite tender promise to accept( =eferential bid in"alid -o, P O highest bidder 1st D bound to accept his offer $highest bid( 1st D breach of unilateral contract since he did not accept P.s offer and liable for damage.

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*<o tender which is received after the last date and time specified shall #e admitted for consideration%

Offer to consider only

2lac(pool and Fylde "ero Clu# &td v 2lac(pool 2orough Council $1%%;( o 64 D) council, in"ited tender for a concession to operate flight In"itation stated4 The council do not bind themsel"es to accept all or any part of tender. No tender which is recei"ed after the last date and time specified shall be admitted for consideration P submit his tender before e7pire time Cut on that day, the bo7 was not check until the following day D refuse to consider P.s tender as it has been recei"ed late. +oncession awarded to another party P sue for damage. o o "rgument from $4 The statement that the late tenders would not be consider doesn.t mean the timely tender would be consider, so there is no any legal obligation to consider 14 If know that timely tender will not consider, tenderer will not bid at all. The statement does not explicit stated council will consider timely tender but with implication. The council either does not stated that4 ?e are not #ound to consider all timely tender as well. -o, in reasonable in"itee would understand the in"itation that if submit on time then his tender will be consider. 1owe"er, there is no more a contractual duty to consider only but not award the contract. -o, damage only for failed to consider but not for a contract. This case still concerned with implied unilateral offer $a promise to consider for submit the tender ?an act@(. As soon as tenderer submit tender $performance as acceptance(, unilateral contract formed. =e uestor are bound to consider all tender submitted.

"ll tender in time will #e consider #ut tenderer had Offer #ut tenderer%s #id not valid conflict interest with employee
Fairclough 2uilding &td v 2orough Council of Port Tal#ot 1%%! o 64 D) +ouncil, remo"e tenderer P from shortlist. There is conflict of interest btw P and D.s employee. o 14

No breach of ctt +ouncil has contractual obligation to consider tenders unless has reasona#le ground for not doing so /conflict of interest0)

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Tender with promise accept through code

@alid

A) - " $evelopment &td v .dina Manufacturing &td !;;: o F D in"ited for tender and has obligation to proceed with the code pro"ided P.s bid seem to be the lowest bidder who should be contracted according to the code D disobey the code and ask tenderer to lower down the bid. P bring action against D o !

Cut for breach of code, P will not lose the contract -o, compensation for loss of contract rather than of a chance to be considered.

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"uction
auctioneer%s re3uest for #ids ITT

!arris v <ic(erson $18&5( o 64 D) auctioneer, ad"ertised furniture will sold on specified day P tra"elled from another place for the sale Cut, the furniture withdraw from the sale on that day D sue for loss of time and e7penses o 14 Ad"ertisement only ITT, not a promise The auctioneer.s ad"ertisement was a statement that he intended to sell certain itemsE it was not an offer that he would sell the items. D no right to sue 1eason4 if anyone ad"ertise a sale which is an offer, then it ha"e to responsible for e"erybody who attend the sale for their loss of time and e7penses ITT

"uction with reserve

Mc Manus v Fortescus ! o Auctioneer cannot reasonably be supposed to ha"e authority to accept bid less than fi7ed reser"e price. o No contract if auctioneer mistaken accept the bid below reser"e price 2idder offer and #B hammer down' withdraw @alid revocation

Payne v Cave 1&8% o F +a"e withdraw the bid at auction before fall of hammer o ! 1e is entitled to do so. Auctioneer is in"iting the offer +a"e is the bidder who make offer /ffer can withdraw anytime before acceptance $down of hammer(

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"uction without reserve

Offer

?arlow v !arrison $18<%( o F4 D)auctioneer, ad"ertised a sale of horse without reser"e by auction $Auction without reser"e mean no minimum price standard set to the auction( P bid :;g and /wner for the horse bid :1g P refuse to bid more D did not know the bidder is /wner D knock down the horse to owner P claim he is highest bona fide $genuine( bidder $In auction, there is prohibition for owner $non)genuine( come to bid( o !4 Auction without reser"e is an unilateral offer. =eason4 Item for auction will be a ,promise. gi"e to highest bidder $bid the highest as an act( -o, there is collateral$separate( contract going on4 1st ) unilateral offer when there is auction without reser"e $unilateral contract will be formed at the end( !nd O bilateral contract will be formed by bidder start to bid as an offer and auctioneer accept by down of hammer $promise to gi"e the price and promise to gi"e the item auctioned( -o, in this case, owner cannot be the bona fide bidder. -o P should be the highest genuine bidder. D breach the unilateral contract as P had perform the re uirement of the unilateral offer D liable for P.s loss 1owe"er P only has right for compensation but not the horse. =eason4 Auctioneer had no breach the bilateral contract. There is no bilateral contract between D and P. Cilateral contract only formed when bidder bid and accept by auctioneer by down of hammer In this case, there is D had no accept the P.s bid, so no liability to gi"e the horse to P.

2arry v $avies $!;;;( o F D) auctioneer put up ! engine for auction without reser"e which cost market "alue 1';;; each P) only bidder which bid !;; for each machine D refuse to sell and withdraw and sold them another party P sue for loss o !

The reasoning used in Aarlow " 1arrison. +ollateral +ontract condition e7ist 1ighest bid cannot be re0ected simply because of it is not high enough +ompensation of !&:;; $together with D bid P !8;;;( entitled gi"en to D.

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.xtra "rgument #y $4 No consideration for D.s promise, there is no profit to D as auctioneer as bid can withdraw anytime before down of hammer $+onsideration mean both party has loss and gain respecti"ely( ! This is benefit for auctioneer as bid can be pushing up before down of hammer. .xtra "rgument #y $4 Agent $auctioneer( is acting for the owner $"endor( of the item is not liable for contract ! Auctioneer is selling agent Although no such contract between "endor and purchaser Cut that does not pre"ent a collateral agreement e7ist between auctioneer and bidder

o o

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railway or airline timeta#le

$epend

Thompson v &M - S 1y 1%5; o =ail carrier make offer by issue advertisement stating the time under which train would run ?il(ie v &PT2 1%'& o =oad carrier make offer to intending passenger by act of running #uses o Accepted by passenger who put himself inside the bus Professor Treitel4 No single rule) depend on wording of the rele"ant document and circumstances

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Communication of the offer

o o o o o o To be effecti"e an offer must be communicated4 There can be no acceptance of the offer without knowledge of the offer. A contract is an agreed bargain, there can be no agreement without knowledge. There can be no ,meeting of the minds. if one mind is unaware of the other. -tated another way, an acceptance cannot ,mirror. an offer if the acceptance is made in ignorance of the offer. 1owe"er, there is different authorities. "iew @alid

<ot aware when passing info to an agent and (now the offer #efore agent pass the message to offeror

,i##ons v Proctor $18%1( o F P ga"e information about criminal to a fellow officer % hours b' ad"ertisement offering a reward The information reach superintendent after ad"ertisement has been issued o ! o Plaintiff' the importance of whose information was admitted' was entitled to the reward' the messengers, + and 2 $the person whom P pass the message to(, through whom such information was con"eyed to -uperintendent P, #eing plaintiff%s agents to convey' and not P%s agents to receive said message)

Commentary o Treitel4 o it can be e7plained that when the officer as the agent of P pass the message to the superintendent, they had aware the offer in the ad"ertisement Cnow the offer #ut refuse to claim during the acceptance and claim afterward @alid

?illiams v Carwardine 1855 o 64 D offer a reward of !; to anyone who ga"e info about murder case P knew about the offer P thought that she would not li"e longer, and pro"ide the info 0ust for ease for her conscience o 14 P%s motive of doing is irrelevant, as long as P knew the offer, P entitled to claim. Forget' ignore or never heard of offer <o valid

1 v Clar(e $1%!&( ?Australian +ase)persuasi"e@ o F A reward is entitled to anyone who pro"ide info lead to con"ict persons who commit the murder case D $or Plaintiff as this is criminal case( arrested for his crime D ga"e the info for the moti"e of get rid of charged o 14 This is different from Ailliam " +arwardine as Plaintiff at that case is aware of the offer. In this case, D although had seen the offer but it was not present in his mind or forgot during the time of gi"ing the information because what in his mind during that time is to get rid of charged. Ignore' never heard or forget the offer amount the same thing

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Cross offer

<) @alid

Tinn v !offman - Co 18&5 o F 1 offer to sell T some goods with same price T offer to buy from 1 same goods with same price >ach offer being made ignorance of other. T contend that there was a good contract o 14 No contract as no true offer and acceptance -ub0ecti"ely they might in agreement but ob0ecti"ely they are not. Cross offer Q offer to sell and R offer to buy on same terms but ignore each other offer

Taylor v "llon DE55 o Accordingly, the e7tended co"er note must be treated as an offer to insure for the future, but it was necessary for the defendant to show at the least that he had ta(en out his motor car (nowing of the extended cover note and in reliance upon it. o Since he had failed to do so' there could #e no valid acceptance and his appeal would #e dismissed) /-o, offeree must aware of the offer(

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"cceptance of the offer F communicationGunconditional accept the terms of offer >nconditional accept The acceptance must be an agreement to all terms of the offer. Acceptance must be a ,mirror image. of the offer.
Intention Offeree not intend to accept #ut his words;act did show acceptance @alid

$ay Morris "ssociates v @oyce $!;;5( o 14 Acceptance occurs when the offeree%s words or conduct gi"e rise to the o#+ective inference that the offeree assents to the offeror.s terms Offeree (now;ought to (now the offer is given in wrong information and accept <)@alid

!artog v Colin - Shields 1%5% o 64 D $offeror( offer hare skin . There is always sale in per piece *istakenly they offer to P sale in per pound instead $there was e7pert e"idence that hare skin generally sold in per piece( P $offeree( sue for loss o 14 P $offeree( could not reasonably suppose the offer contained the offeror.s real intention. There is no binding contract $sub0ecti"ity important in this point( Centrovincial .states v /MI"C0 Merchant Investors "ssurance Company 1%85 +/A o 64 /fferor let premise to /fferee for rental 9:85!; /fferee recei"e a letter of a rent figure of 9:<;;; and accept it 6igure ha"e been offered in error -hould be 91!:,;;; /fferor inform /fferee after recei"e reply of acceptance /fferee wants to hold on 9:<;;; /fferor sue /fferee $there is no e"idence show that offeree know or ought to be know there is error initially( o 14 There is binding agreement on :<;;; =eason4 There is "alid offer and acceptance there is no proof of /fferee either know or ought to reasonably know the /fferor.s error. >nglish law, offer not determined by what come across from /fferor.s mind but ob0ecti"ely by refer to a reasonable man as offeree will understand that offer. $If P ?offeror@ can pro"e D ?offeree@ either know or ought to be know there is error, then P should win the case, so the burden to proof offeree.s mind rest on offeror side(

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"gree to all term in offer

Offeree add new terms to the offer given <)valid acceptance /counter:offer0

2rogden v Metropolitan 1ailway Company $18&1( o 64 +ompany sent o"er the terms of agreement Crogden add a name of arbitrator and sign the document. The agreement return to the company The manager keep it. +ompany start order the coal from Crodgen Dispute arise. Crogden deny there is any contract o 14 In this case, there is some confuse about who is offeror and offeree. Initial, +ompany will be offeror. After, Crogden write down the name$new terms added(, it turn to be a counter offer. Offeree try to accept original offer after C:O C:O (ill off original offer

!yde v ?rench /DHB60 o 64 D offer to sell 1;;; Plaintiff reply with offer to buy %<; D refuse P agree the 1;;; offer D deny any agreement formed o 14 o 1e re0ected the offer pre"iously made by the Defendant. o Plaintiff, instead of accepting the alleged proposal for sale for H1;;; on the :th of Bune re0ected it, and made a counter proposalE this put an end to the DefendantSs offer, and left the proposal of the Plaintiff alone under discussion o I think that it was not afterwards competent for him to re"i"e the proposal of the Defendant, by tendering an acceptance of itE and that, therefore, there e7ists no obligation of any sort between the parties Offeree as( for more information <ot C:O

Stevenson' Aac3ues - Co v Mc&ean $188;( o F D offer to sell P ,';s, net cash, open till *onday. *onday, P reply4 ,Please wire whether you will accept '; for deli"ery o"er ! months, if not, the longest limit you would gi"e.. D recei"ed and not reply but sold to 5rd party D telegraph P that he had sold the iron Cefore the telegraph arri"e, P sent acceptance to D P recei"ed the telegraph P sue D for breach of contract o 14 P telegram of *orning is a mere uery of the offer n not a counter offer -o, offer still open to accept =e"ocation of offer ineffecti"e unless communicated

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!& | P a g e

Offeree unconditional accept the offer #ut add a letter he cannot performed such condition in the offer yet

@alid

The Society of &loyd%s v Twinn $!;;;( o 64 D as offeree accept the offer with a co"ering letter stated that performance in ctt cannot made in time Dispute arise D deny e7istence of ctt since there is counter offer and not accepted by P o 14 Not an counter offer If there is benefit for offeree, he can unconditionally accept e"en though he cannot perform according to ctt The co"ering letter is collateral $separate( ctt to the original ctt.

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Offeror and offeree will attempt to contract on $differing( standard forms

There will be a ,#attle of the forms. with offers result of counter)offers passing to and fro. *&ast shot% wins this ,battle of the forms.

=eceipt as last shot as counter offer 2ritish 1oad Service &td v "rthur Crutchley - Co &td) o 64 P deli"er goods to D D recei"ed and print a receipt with condition4 ,recei"ed under D.s condition. Dispute arise. o 14 D.s receipt as counter offer P accepted by hand o"er the goods. 2ast shot must be clear 2utler Machine Tool v .x:Cell:o /DEIE0 o F P) seller offer to sell to D)buyer. The offer was document which contain price "ariation clause D place order with conflicting terms The order contain tear)off slip at the bottom which e7pressly stated that it sub0ected to buyer.s term P completed the slip and return to D with a letter stated that order was according to P.s original offer Dispute arose. P sue D o ! D.s conflict term as counter offer, and kill off the original P.s offer P accept the c)offer by complete the tear off slip The accompany letter look like last shot of battle form Cut it is merely a reference to the price of the goods $ su#+ect matter of this sales(. This letter does not mean refer to P.s own terms and condition Professor Treitel4 if P stated that ha"e to according their terms and condition instead of only refer to sub0ect matter, then it may turn into counter offer, and P may succeed in claiming.

"dvantages of this traditional approach Certainty ) legal ad"isers will know what is way court will look at whether a contract is formed or not : the party will measure their conduct in which court will not uphold a formation of a contract >niversal applied to all Criticism" Too rigid It produce all or nothing result There is no compromise in terms and conditions, only either buyer or seller side This may encourage business man keep e7changing their terms and conditions to make sure is ,last shot. It will make last receipt in difficulty If last receipt refuse to recei"e the goods, then there is no contract

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Cut if he recei"es it, then a contact is formed

Traditional approach pre"ail Te(data Interconnections &td v "mphenol &td !;;% o 64 In long term contracting agreement, Tekdata)buyer)D send purchase order to P)seller. P acknowledge by sending back acknowledgement with its terms and conditions *any years later, Disputes arise, P sue D o 14 6irst instance 0udge use different approach and held D.s terms should be pre"ail. +/A4 Difficult to displace traditional analysis of offer and acceptance. >"en parties belie"ed they are in contract, if not c)offer not accepted, still no contract D accept by conduct, contract formed.

No terms and condition pre"ail at all $different approach( ,!SP Inc) v "2 .lectronic &td !;1; 64 o D)supplier, P)buyer o >"idence show that neither party agree to contract on other.s term o 1owe"er, both party belie"ed there is contract o They are still perform according with contract. o Disputes arise. o P sue for D 14 o Displace traditional approach o No agreement reached, neither parties agree to terms. o -o, performance cannot referred to which terms applied o -hould be no contract formed. #ut parties believed there is contract, performance of contract is done$ %udge said there is implied term from Sale and Good &cts '()( which will implied in any event$ So, contract is formed$

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"ctivity 4)J A wrote to C offering 5;; bags of cement at H1; per bag. C wrote in reply that she was "ery interested but needed to know whether it was Premium Juality cement. The following morning, soon after A read C.s letter, C heard a rumour that the price of cement was about to rise. -he immediately sent a fa7 to A stating, ,Accept your price of H1; for Premium Juality.. Assuming that the cement actually is Premium Juality, is there a contractD If so, does the price include deli"eryD >7plain your reasoning.

"nswer A has offered the goods for sale O the re uisite intention to be bound is present. C.s initial correspondence can be taken as a re0ection O but it is more likely to be a re uest for information and the offer sur"i"es. C.s fa7 is good when it is communicated O probably instantly. The fa7, howe"er, adds a condition and the communication is therefore not an un ualified consent to A.s offer. /n balance, this probably operates as a conditional offer O which has the effect of destroying the original offer. There is, thus, no contract. >"en if there is a contract, the contract will not include the deli"ery price $unless such a term can be implied by reason of the course of dealing between these parties or by reason of the custom of this industry(. "ctivity 4)5 Ahat is the position under the ,last shot rule. if, after the e7change of forms, the seller fails to deli"er the goodsD A contract has been formed. -ee, for e7ample, Cutler *achine Tool +o 2td " >7)+ell)/ +orporation $>ngland( 2td. If the seller fails to deli"er the goods, they are in breach of the contract.

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Communication of the acceptance /Powell v &ee0 acceptance is not effecti"e until it is communicated to the offeror
2ord Denning in .ntores v Miles Far .ast Corp 1%<< If oral acceptance is drowned out by o"erflying aircraft, then it has to be repeated until offeror hear it, if not, there is no ctt Telephone con"ersation If line go dead, offeree must call back to make sure offeror hear the acceptance, if not, no ctt If acceptance is made clear but offeror does not hear what he said, then there will be still ctt unless offeror tell offeree to repeat and offeree repeat word of acceptance. Cut if offeree does not repeat, then no ctt Instantaneous communication4 ctt formed when recei"ed the acceptance o 2rin(i#on &td v Stahag Stahl 1%85 Instantaneous communication4 tele7 and telephone Acceptance take place at the moment acceptance is recei"ed by offeror /r at the place offer ought to be Offeree silence respond to offer <) @alid acceptance

Felthouse v 2indley $18:!( 64 Plaintiff)uncle. P enter negotiation with his nephew to buy nephew.s horse. P stated that if he heard nothing from N then the horse was his with price negotitated. N didn.t reply, and he actually want to accept it. Cefore this, he already put the horse on auction. N told the auctioneer)Defendant not sell the horse Cut D sold it accidentally P sue D 14 D argue that P had no right to sue as he was not the owner to the horse and N ne"er accept it +ourt held, N.s silence not amount to acceptance /fferor cannot imposed silence as acceptance upon offeree. 1easoning #ehind /fferee cannot accept by silence but must communicate to offeror /fferor cannot imposed an obligation upon offeree that offeree can accept by silence =eason4 It will be not fair for offeree that he will be facing unwanted contractual obligation. $if offeree unaware of such offer, then ctt will be formed that maybe offeree will be re0ect if he aware of it(

o o o o o

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.xception Silent as acceptance Offeree no respond offer to terminate ctt and afterward he stop follow ctt o#ligation

@alid acceptance

@itol S" v <orelf &td $1%%:( 64 Cuyer)offeror sent on offer of repudiatory breach to seller)offeree. Juestion arise, whether the offer has been accepted by offeree who then not perform any of their own obligation that he e7pect to perform if the contract still in force. 14 +ommunication depend on particular contractual relationship and particular circumstances of the case In this case, Non)performance as indicate end of contract $acceptance( although silence. >nilateral offer' offeree no repond of acceptance and perform @alid acceptance

Carlill v Car#olic Smo(e 2all Company $18%5( 14 Performance is the acceptance of the offer and there is no need to communicate the attempt to perform. +ommunication of the acceptance is wai"ed because it is not necessary Notification of acceptance is re uired for the benefit of the person who makes the offer ' the person who ma(es the offer may dispense with notice to himself if he thin(s it desira#le to do so , and I suppose there can be no doubt that where a person in an offer made by him to another person, e7pressly or impliedly intimates a particular mode of acceptance as sufficient to make the bargain binding, it is only necessary for the other person to whom such offer is made to follow the indicated method of acceptanceE and if the person ma(ing the offer' expressly or impliedly intimates in his offer that it will #e sufficient to act on the proposal without communicating acceptance of it to himself' performance of the condition is a sufficient acceptance without notification) @alid acceptance

Offeree no respond to the offer and perform according offer

2rogden v Metropolitan 1ailway Company $18&1( o 64 +ompany sent o"er the terms of agreement Crogden add a name of arbitrator and sign the document. The agreement return to the company The manager keep it. +ompany start order the coal from Crodgen Dispute arise. Crogden deny there is any contract o 14 If there is re uest stated in the offer to accept must ha"e done certain things If offeree did that, then he is bound In this case, there is some confuse about who is offeror and offeree. Initial, +ompany will be offeror. After, Crogden write down the name$new terms added(, it turn to be a counter offer. Although company $now become offeree( does not communicate the offer, but he accept #y conduct $in this case show acceptance by order the coal and accept it( -o, there is contract.

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"cceptance #y post

Offeree post acceptance "dams v &indsell $1818( o 64 D offer to sell P and re uest reply in post. /ffer letter wrongly addressed -o, letter acceptance recei"ed ! days later than D e7pected. D sold to 5rd party before 1 day recei"ed the acceptance letter. 2etter posted before D sold the item. o 14 +tt formed once letter posted. $In yeaer 1818( If not, no ctt will be formed e"er. If contract only formed when letter acceptance recei"ed, then offeree is not bound until they are notified that the offeror had recei"ed the acceptance letter. If this is the case, /fferor ha"e to send the notification letter again /fferee not bound until they ha"e recei"ed the notification =eason4 .van $1%::( and ,ardner $1%%!( /fferee may start perform once he posted the acceptance $ctt formed( /fferor may start enter into ctt with 5rd party which relating to sub0ect matter. =ule of con"enience, but offeror ha"e to bear the risk. @alid

@alid when the acceptance is post/no communication0 Postal 1ule "cceptance @alid when posting

Offeree post acceptance and post never arrived

!ousehold Fire Insurance v ,rant $18&%( 64 o P.s letter acceptance of D.s offer to buy shares ne"er reach D. o P wind up. o D refuse to pay for shares 14 1ow then can a casualty in the post, whether resulting in delay' which in commercial transactions is often as #ad as no delivery' or in non:delivery, unbind the parties or unmake the contractD To me it appears that in practice a contract complete upon the acceptance of an offer #eing posted' -o, D liable to pay. o =eason why acceptance on posting4 If offeror care about the offer, he should make in uiries to the offeree if he does not recei"ed any reply /fferee will feel safe when posting as ctt formed, no need wait for notice

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Condition of P1

must be properly posted must not misaddress must be reasonable must not ousted by offeror method of P= applied instantaneous method not included D) must #e properly posted Offeree pass the post to postman <) valid &ondon and <orthern 2an(' ex p) Aones' 1e 1%;; o 64 D offer to buy share D wrote from -heffield a letter withdrawing his application, and this letter was recei"ed by the bank on /ctober !& at H)K6 ")M) The allotment notices $acceptance( to Bones about I ")M) on /ctober !& were taken to the outer precincts of the 2ondon 3eneral Post /ffice at -t. *artinSs)le)3rand. !ere a postman came by and offered to take the letters. 1e was paid a small fee for his trouble, and according to the e"idence on behalf of the bank he went into -t. *artinSs)le)3rand, came back, and said it was all right. The allotment letter to Bones was not deli"ered till I)K6 P)M) on /ctober !&. o 14 It seems to me, howe"er, that the postman was not an agent of the Post /ffice to recei"e the letters. The Postal 3uide e7pressly states that town postmen are not allowed to take charge of letters for the post. "ll I (now is that it was not until a much later hour that they were found on the ta#le appropriated to #ranch office letters) 1owe"er that may be, I thin( that the company has failed to prove that the letter' which did not leave the Post Office until a#out DD oLcloc(, was posted #efore H)K6' or #efore E)K6' at which hour the secretary arrived and opened the letter of withdrawal) 4) must not misaddress Offeror misaddress and offeree use the address to accept @alid Offeree misaddress provided offeror did not do the mista(e <) @alid &A Cor#etis v Transgrain Shipping 2@$!;;<( the offerorLs letter to sell goods at a certain price' if the offer were accepted in due course of post' was misaddressed' #ut it was accepted promptly #y letter on its actual receip t. The court considered it fair that the conse3uences of the delay should lie at the door of the party responsi#le for the delay' i)e) the offeror) /n the facts of that case, the goods had been sold by the offeror to a third party after it would ha"e e7pected to recei"e a reply, if it had sent its offer letter to the correct address, but before it in fact recei"ed the offereeSs letter of acceptance. Considering that it was only fair that the adverse conse3uences of delay should rest with the party responsi#le for the delay, the court held that acceptance was complete on the offeree sending its letter of acceptance, so establishing the postal rule. If in that case the delay had #een occasioned #y the offeree misdirecting its letter of acceptance' rather than the offeror misdirecting its letter of offer' it is difficult to see that the court would have arrived at the result which it did)

1. !. 5. '. <. :.

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Offeree lived apart with offeror

K) must #e reasona#le @alid

!enthorn v Fraser $18%!( o 64 D hand a note which contain offer to P in 2i"erpool P bring the offer home $another city( and sent acceptance through post o 14 1eld, that where the circumstances under which an offer is made are such that it must ha"e been within the contemplation of the parties that, according to the ordinary usages of man(ind' the post might #e used as a means of communicating the acceptance of it' the acceptance is complete as soon as it is posted) That in the present case' as the parties lived in different towns' an acceptance #y post must have #een within their contemplation' although the offer was not made #y post) Offeree reply #y post to the instantaneous mode of offer < @alid

Muenerduaine v Cole 1885 An offer by telegram is presumpti"e e"idence that a prompt reply is e7pected, and an acceptance by letter may be e"idence of such unreasonable delay as to 0ustify a withdrawal of the offer. B) must not ousted #y offeror Offeror wrote must informed him the acceptance <) @alid !olwell Securities v !ughes $1%&'( o 64 D offer P and stated that 4 ,#y notice in writing to NdefendantO at anytime within 5 months... P post the acceptance letter and ne"er arri"ed. P sue D o 14 +/A /rdinary post can be used but not apply P= +ondition of not apply P=4 >7press term stated that acceptance must reach offeror o ?ord of *notice in writing% very clear to show that must reach offeror o Notice mean to inform someone to know something, if ne"er arri"e, that is not notice at all o -imple e7press enough, such as4 ,let me ha"e your reply., ,let me know your answer. etc P= not apply when will produce incon"enient and absurdity *ust take into account all circumstances include nature of sub0ect matter. If negotiation in"ol"ed the acceptance must reach the offeror, then it will no ctt when acceptance ha"en.t arri"ed. Mse few e7amples, Is stockbroker liable for damages as he did not follow instructions from his client in what the letter ne"er arri"eD

J) method of P1 applied *elegram, a form of the postal acceptance rule was applied. @alid 2runer v Moore $1%;5( +rdinary Post @alid "dam v &indsell

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5) instantaneous method not included 2ord Denning in .ntores v Miles Far .ast Corp 1%<< If oral acceptance is drowned out by o"erflying aircraft, then it has to be repeated until offeror hear it, if not, there is no ctt <ote

If postal rule not applied' the ordinary post still can #e used 2ut it is only will #e considered as valid acceptance when the post reach the offeror

o o o o

1evocation of Postal 1ule "cceptanceP Normally after "alid acceptance, then it will be formation of ctt and impossible to re"oke Cut in P=, there is no communication to offeror yet After posting a letter of acceptance, the offeree informs the offeror by telephone, before the letter arri"es, that they re0ect the offer, should the act of posting an acceptance pre"ail o"er the information actually con"eyed to the offerorD In the absence of >nglish cases

$unmore v "lexander $185;( $-cotland( 64 o /fferee accept the offer by sending acceptance o /n ne7t day, sending a letter to stated that he no longer want to accept the offer 14 o If someone sent a letter to buy something. o 2ater he change his mind, and write another letter to countermand the first o ! letters arri"e together will be end with no purchase at all. o o o when citing them, it is important to emphasise that they are not binding O and indeed ha"e "ery little persuasi"e authority. The uestion must therefore be answered primarily as a matter of principle. Treitel4 ,the issue is whether the offeror would be un0ustly pre0udiced by allowing the offeree to rely on the subse uent re"ocation..

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Method of Communication
Prescri#ed method of communication Offer did not told a#out the method' offeree use a less advantageous method to accept @alid acceptance

Manchester $iocesan Council for .ducation v Commercial and ,eneral Investment &td 1%:% o 64 P decide to tell property by tender and stated that the person whose bid accepted will be informed by letter D$offeror( complete the form of tender and sent it to P$offeree( P accept and sent the acceptance to defendant.s sur"eyor but not to address on tender o 14 +ommunication to address in tender was not solely permitted address -o, it is a "alid ctt If offeror insist on particular method then offeree has to follow. If offeror does not use clear word' he is #ound #y acceptance which in the form of not less advantageous than he prescri#ed) D in this case is not less disad"antaged by notification to sur"eyor. P$offeree( can wai"e the method prescribed by D $offeror( if it does not bring disad"antages to offeror. <) @alid acceptance

Offeree use another method which specified #y offeror

.liason v !enshaw $181%( O M-A case o 64 /fferor)D offer to buy from offeree)P /fferor re uest that acceptance should be sent back thru wagon which sent the offer. P sent the acceptance by ordinary post P thought letter will be fast 1owe"er, letter arri"e more later than the wagon reach D Aagon return with empty hand Assume offeror offer to buy somewhere else o 14 No ctt. /fferor had specified the method of acceptance which offeree fail to comply +ommentary If letter arri"e before wagon reach P, then it will be ctt as method of acceptance thru wagon not so important, the more important is that reach offeror. $maybe argue that if method is less disad"antageous to offeror?arri"e more latter than prescribed method@, so it is not acceptable ( /r it may also be argued that offeree now making counter)offer as differ to original offer.s term. It is up to original offeror want to accept or not /!yde v ?rench0

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Offeror send offer #y instantaneous method and offeree replied with post *ethod for communicating acceptance inferred from offer. Muenerduaine v Cole $1885( o F /fferor sent offer by telegram to offeree The offer re uire uick reply /fferee accept by posting o ! No ctt. /ffer re uest uick reply /fferee.s posting regarded as not suitable to the offer -o, no ctt formed

<) @alid acceptance

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Modern method of acceptance Offeree send acceptance to the offeror #y fax Ctt formed at the place of acceptance o .ntores v Miles Far .ast Corp 1%<< o 64 P)2ondon)offeror, D)Amsterdam)offeree D acceptance recei"ed by P.s machine in 2ondon Dispute arise, where is the ctt formedD 2ondon or AmsterdamD o 14 +tt formed in 2ondon where acceptance recei"ed. 2ord Denning said4 If oral acceptance is drowned out by o"erflying aircraft, then it has to be repeated until offeror hear it, if not, there is no ctt $so, P= not applied(

Telephone con"ersation ,ho notify problem, then who will be responsible Condition D If line go dead, offeree must call back to make sure offeror hear the acceptance, if not, no ctt Condition 4 If acceptance is made clear but offeror does not hear what he said If /fferor not care about it, then there will be still ctt. If /fferor tell offeree to repeat /fferee repeat then it will be ctt Cut offeree does not repeat, then no ctt. Condition K If offeror no fault on his side on not recei"ing the acceptance, and offeree belie"e the message has reached, then no ctt. $in this condition maybe, line went dead, offeror don.t know there is a call of acceptance, and offeree also did not notice and thinking the message had been transferred, then no ctt(

Tele7 con"ersation ,ho notify the problem then who will be responsible Condition D 2ine dead during sending acceptance, machine will stop, then no ctt /fferee has to repeat until message pass thru Condition 4 /fferee sent thru the acceptance, no ink on the machine in offeror side. If /fferor not care, then it will still ctt. If /fferor notice that and ask offeree to repeat. If offeree repeat, then it is ctt If no repeat, then no ctt Condition K If offeror no fault on his side on not recei"ing the acceptance, and offeree belie"e the message has reached, then no ctt. $in this condition maybe, line went dead, offeror didn.t know there is acceptance message, and offeree also did not notice and thinking the message had been transferred, then no ctt(

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Offeree fax to offeror

"cceptance at the place of received

ASC Qestafoni /,<FP0 , <i(olad=e Ferroalloy Plant v 1only !olding &td !;;' o -ame analogy O if acceptance of fa7 message not clear, then still ctt. o If message not been recei"ed, machine will inform sender $offeree(

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?hat time is within #usiness hourP o

2usiness !our Issue $epend

2rin(i#on &td v Stahag Stahl 1%85 <o universal rule can cover all cases $what time is within business hour(. *ust refer to intention of parties within business practice *ust refer the risk within $if concluded as within business hour but offeror fail to notice, then it is same as postal rule which consider acceptance but not communicate to offeror.( This will against general rule of the need of communication of acceptance. @alid acceptance at the time of received

Offeree send acceptance within #usiness hour #ut offeror failed to read

The 2rimnes 1%&< 64 The message appear between 1&.5; O 18;; $within office hour( *essage not noticed until ne7t following day 14 *essage is effecti"e when recei"ed e"en though not read until ne7t following day Offeree send outside the #usiness hour Considered acceptance at the next wor(ing day

Mondial Shipping and Chartering 2@ v "starte Shipping &td 1%%< 64 Notice sent at time !5.'1pm on 6riday 14 /utside the ordinary business hour /nly effecti"e on ne7t working days. Offeree send email acceptance at 5pm' offeror did not read o Considered acceptance according to circumstances

Thomas v 2P. Solicitors $a firm( !;1; 64 >mail sent at 18.;; =ecipient had gone home at 1&.'< 14 "ccording to previous correspondence email' the transaction could finish on the evening' so DH)66 still within office hour So' email considered received at DH)66

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The end of an unaccepted offer D) 1evocation

Offeror revo(e #efore acceptance Offeror promised to give certain period to offeree for consideration' and revo(e #efore the period end @alid

1outledge v ,rant $18!8(. 64 /fferor make offer to offeree and open to offeree for si7 weeks /fferor re"oke after 5 weeks /fferee purport to accept in last week 14 No ctt Absence of consideration to support promise to keep offer open for specified period, offer may re"oked any time before e7pired. o -owever, where the offeror is obliged .by a separate binding collateral contract/ to keep the offer open for a specified period of time$ <o @alid revocation

Offeror argud postal rule applied to post of revocation

2yrne v @an Tienhoven $188;( 64 1st /ct, /fferor write offer to offeree 8th , /fferor write re"ocation letter and post 11th, offeree recei"ed offer letter, and sent telegram to accept !;th , re"ocation letter arri"e. 14 P1 not applied to revocation $if P= applied, once offeror post re"ocation, it is effecti"e( +ontract concluded when offeree sent the telegram $P= applied to acceptance( $=e"ocation must communicated( 0f offeror can revoke by this way, then it will be e1tremely inconvenience in practise because every time when offeree received offer still uncertain whether it will be another revocation letter or not$

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Krd party informed offeree that offer had #een revo(ed

@alid revocation

$ic(inson v $odds 18&: 64 /fferor make offer to offeree and said that offer will be left until 6riday /n Thursday, offeree informed by 5rd party that offeror had sold the offer item to another party /fferee then sent acceptance 14 /fferee been told by 5rd party that offeror changed his mind is the same as offeror himself told tell offeree4 I withdraw my offer If, /fferee knew that offeror change his mind. Then it is impossible to form an agreement that e7istence of the same mind between parties ne"er occur *ellish 2B said4 in order to make a ctt, ! minds must in agreement at some one time, that is at the time of acceptance. In this case, offeree already know that offeror not going to sell it to her, then how can she still can accept it and form a binding ctt. $obiter( Another interpretation that, if acceptance word by third party is not clear to the offeror, then still not ctt. Comment from Professor Treitel4 If re"ocation from offeror himself or authoriKed 5 rd party, then it is sufficient

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Offeror revo(e during offeree is performing

>nilateral revocation <o valid revocation

.rrington v .rrington - ?ood 1%<! 64 /fferor offer if his son and daughter in law complete instalment, then the house will be theirs. They start paying /fferor died -pouse of offeror claimed the house is hers 14 It is unilateral offer. " promise to give the house once they performace the act of completion of instalment) They are not #ound to perform 2ut when they want to start perform' offeror cannot revo(e even after he passed away Cut if they fail to pay instalment in middle, then offer can be re"oke Offeror has the #enefit from part performance and revo(e o No #alid

Schweppe v !arper !;;8 1eld +ourt ,should be reluctant to find that the offer contemplate the ability to re"oke any time before acceptance in circumstance where offeree had gone beyond starting performance and there is ,part performance. with *a real #enefit accepted #y the offeror from the part performance% Contrast

In unilateral offer' is that mean offeree #ound to continue performing if offeror cannot revo(eP Schweppe v !arper !;;8 64 /fferor offer to offeree /fferee start to perform /fferor re"oke 14 $No important( *a0ority held the point of ,term. in offer is too uncertain, so not a "alid offer $Important( in dissenting +udgement #y ?aller &A4 obiter only Ahen offeree start to perform, the performance will form another contract with offeror that offeror cannot re"oke the offer $if offeror benefit from the part performance(. $two)contract theory( 2ut in another interpretation' that mean offeree is #ound to perform) Offeree cannot stop to perform in middle) This view is contradict with Errington case which held that offeree not #ound to perform

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Contrast: "gent cases' high ris( to high reward Offeror offer /unilateral0 a high reward for a slight @alid effort' and offeree still performing and revo(e &uxor &td v Cooper 1%'1 64 o About agency contract which term that agent was to be paid 1;,;;; on completion sale of ! cinemas at least certain price. o Agent introduce the potential purchaser, but sale not take place 14 o There is no implied term to show that offeror cannot revo(e) o The promise only binding when complete sales o o o o o Is the offeror can revo(e this type of unilateral offer /agency0P /agent will always loo(ing of #uyer' he already start performing0 -ince the agent take the risk of hope of a substantial remuneration for comparati"ely a small e7ertion /nly within ! week times he would get 1;;;; agency fee for introduce only ! buyers This fee e ual to annual salary for 2ord +hancellor There is no lack of business efficacy e"en though refuse to sell to agent.s client. -o, the risk taken in this type of cases $can be re"oked anytime( is worth >nilateral revo(e method Shuey v >S"$18&<( /fact no important0 14 o =e"oke same manner as to make the offer

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4) Condition of offer not fulfilled

/fferor gi"e an offer but later offer.s condition changed /ffer lapsed

Financings &td v Stimson $1%:!(. o 64 About the offer to sell car on hire)purchase o 14 In offer to hire)purchase, there is implied condition that car remain undamaged until moment of acceptance In this car, car is damage, so condition offer is damage and there was no contract.

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K) $eath
Offeree (new that offeror is died and accept the offer o Coulthart v Clementson 18&; @alid <ot valid

Offeree did not aware the death of offeror' and accept

2rad#ury v Morgan $18:!( 64 $no important( 14 If offeree unaware of offeror%s death' he is still can accept) !owever' it is only in non:personal offer /there is no need of involvement of offeror0 Contrast $ic(inson v $odds 64 irrele"ant 14 $obiter( /ffer terminated automatically, disregard knowledge or not /fferee died and representati"e of offeree try to accept the offer No #alid

1eynolds v "therton 1%!1 64 o An offer to sell share to the directors of the company o /fferee passed away o =epresentati"e of offeree attempt to accept offer 14 $obiter( o If offeree fail to accept before dead, then offer is terminated +ontrast

Professor Treitel4 o If offer related to ctt which was not personal, then offer could be accepted e"en after death of offeree.

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B) Time given expired

/fferor ga"e a period of time to consider the offer and after end of period, offeree try to accept o No offer

The offeror may set a time limit for acceptanceE once this time has passed the offer lapses. $1owe"er, offeror can re"oke e"en b' time e7pired if no consideration pro"ided. 1outledge v ,rant(

J) <o Time given' lapse after reasona#le time

/fferor ga"e an offer without mentioned time to be considered, offeree try to accept after period of time o Depend

1amsgate @ictoria !otel v Montefiore $18::(. 64 /fferor offer to buy share in Bune /fferee accept the offer by allot share to offer to offeror in No"ember 14 No ctt =esponse to offer not within reasonable time Professor Treitel -omething price is sub0et to fluctuation $such as in this case, shares( or something is perishable , always open for short time Another case4 Muenerduaine v Cole /ffer sent by telegram which implied fast reply -o acceptance by post $slow( lead to lapse of offer

o o o

5) 1e+ection #y offeree
/fferee re0ect the offer, and try to accept !yde v ?rench $18';( No offer

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I) Su#se3uent offer #y offeror

/fferor ga"e another offer on same matter, and offeree try to accept the first offer 6irst offer is in"alid

Pic(ford &td v Celestica &td !;;5 64 /fferor sent offer to offeree /fferor subse uently sent another offer to offeree which contain implied term of lower price /fferee didn.t notice and accept the first offer 14 -ubse uent offer cancel the first offer !nd offer is not been accepted. -o, there cannot be acceptance of nothing by offeree $offeree thought he accepted the first offer( ,Acceptance. by offeree regarded as new offer to original offeror And in this case, offeror accept it by conduct.

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$ifferent approach in discussing offer and acceptance

Party argue that there is no contract after performing the part of *contract% in fact there is no certain of offer and acceptance initially @alid Contract

Trentham &td v "rchital &uxfer &td 1ere the claimants T were main contractors employs design and build some industrial units and the defendants A were manufacturers and installers of aluminium screens and windows. As subcontractors, A carried out work for T installing these products and were paid. The parties had entered into negotiations to draw up a contract but no finally agreed contractual document was e"er concluded. A dispute arose between them whereby T alleged that A were in breach of contract but A denied the e7istence of a binding contract At first instance the trial 0udge found that there was a binding contact in that A by carrying out the works, had accepted Ts offer. In effect, A had accepted by conduct The +ourt of Appeal agreed with the conclusion but not the reasoning of the court below. Stern &)A) $with whom the other members of the court agreed( considered that in the "ast ma0ority of cases the mechanism of contract formation will be the coincidence of offer and acceptanceE this was particularly so in the case of a contract allegedly made by an e7change of correspondence. Cut it will not necessarily be the case in a contract alleged to ha"e come into e7istence Tduring and as a result of performanceT. 6or this proposition, -teyn 2B cited, inter alia, the case Crogden " *etropolitan =ailway +o $acceptance by conduct(. The fact that the transaction is executed /performance of the contract has #een carried out rather that executory0 ma(es it easier to imply a term resolving any uncertainty' or show no intention to create legal relationship or alternatively' it may ma(e it possi#le to treat a matter #e finalised as essential) o The 0udge analysed the matter in terms of offer and acceptance. o I agree with his conclusion. o Cut I am, in any e"ent satisfied that in this fully e7ecuted transaction a contract came into e7istence during performance e"en if it cannot be precisely analysed in terms of offer and acceptance, and it does not matter that a contract came into e7istence after part of the work had been carried out and paid for. o The conclusion must be that when the contract came into e7istence it impliedly go"erned pre)contractual performance

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+ommentary 1is 2ordship was satisfied that the parties intended to enter into legal relations and it was not a case where there was an understanding that a contract would only come into being it a written contract was concluded. The contemporary e7changes, and the carrying out of what was agreed in those e7changes, supported the "iew that there was a course of dealing between the parties. /n Ts side there was a right to performance of the work by A and on ASs side there was a right to be paid on the agreed basis. Although -teyn 2.B. acknowledged that the formation of the T"ast ma0orityT of contracts will continue to be tested by the e7istence of offer and acceptance, his approach to agreement in this case is similar to the 0udgment of 2ord Denning *.=. in 3ibson with its emphasis on the Tcorrespondence as a wholeT and the Tconduct of the partiesT. Cut this formulation of 2ord Denning was decisi"ely re0ected by the 1ouse of 2ords in 3ibson. It is doubtful therefore that Trentham " Archital 2u7fer opens up an alternati"e Tfle7ibleT approach to contract formation, although it does perhaps clarify manner with regard to e7ecuted or partially e7ecuted transactions. Cut e"en here the notion that earlier actions can be go"erned retrospecti"ely by a later contract could pro"e problematic in practice. The 0udge at first instance had found a contract through offer and acceptance and it is likely that many contracts that come into being through performance can be analysed on the basis that acceptance takes place by conduct This was certainly the case in Crodgen, a case relied in by -teyn 2.B. as in"ol"ing a contract coming into being through performance.

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