Question:

For sale - Complete set of Duck-egg Superman models in plastic, each figure 5.5
cm high, painted. Twelve figures in all - $1,200. Phone 415 555 2671
or write to Wyman. Nos. 888, ABC Road, XYzs Garden, Washington, D.C.
. Times newspaper advertisement

On Sunday, Annabel wrote enclosing a cheque for $1,200 and saying, If I do not hear
anything by Thursday, I will assume the dear little things are mine.

On Monday, Beryl wrote saying, I offer you $1,000 for the lot. This arrived on
Tuesday and Wyman wrote back saying, No, I want $1,300. When Beryl received
this she sent a letter saying. Yes, I accept and enclose $600 and will pay the balance
of $700 within a month.

Meanwhile, Cynthia wrote on Wednesday saying, I will buy the models for $1,200
and Wyman replied saying, I want $1,300. This letter was posted on Thursday and
Cynthia received it on Saturday when she posted a reply saying, I accept.

Meanwhile, Wyman wrote to Cynthia on Friday saying, Sorry I have decided to keep
them. Cynthia received this letter on the next Monday. It is now the Tuesday of
the next week and Annabel, Beryl and Cynthia have all arrived on Wymans doorstep
- advise Wyman on the legal position.
Answer:
This problem involves the discussion of the rules of offer and acceptance in
the law of contract. An examination of some of these rules will reveal whether
or not Wyman has made a contract with any of the three women involved.

The first point to be decided is whether the advertisement is an offer or only

an invitation to treat. Usually the courts have held that an advertisement is an
invitation to treat. An example which illustrates the point is the case of <
Partridge v Crittenden > where wild birds were advertised for sale in a
newspaper classified advertisement column. It was held that the
advertisement was not an offer but an invitation to treat.

Thus, in this problem, Wymans advertisement is an invitation to treat, which

means that he is inviting people to make offers and he is not bound by the
terms of the advertisement.

Annabels claim to the models can now be considered. Her letter constitutes
an offer and in order for a contract to come into being the offeree, Wyman,
must accept and, in normal circumstances, communicate that acceptance.
The offeror cannot impose acceptance on the offeree or stipulate that silence
shall amount to acceptance. This point was considered in the case of <
Felthouse v Bindley > in which the plaintiff had offered to buy the defendants
horse for specific price and stated that if he heard no more he would consider
the horse his at that price. Although there was evidence that the defendant
had intended to accept, the court held that there was no contract as the
defendant did not reply and therefore acceptance had not been
communicated. Applying this principle to the problem, as Wyman has not
replied, there is no contract between Wyman and Annabel and she is not
entitled to the models.

The third point to be considered is whether Beryl is entitled to the models. She
wrote to Wyman offering $1,000, but Wyman rejected this offer by making a
counter-offer to sell for $1,300. Although Beryl purported to accept this offer
there is no contract because her acceptance was only conditional. Similar
facts are found in the case of < Neale v Merrett >. The defendant offered to
sell land to the plaintiff for 280 and the plaintiff accepted, but sent a

cheque for 80 and promised the rest by instalments. It was held that there

was no contract as the supposed acceptance was not unconditional because

it involved new terms. By introducing new terms Beryl has made a new offer
which Wyman is entitled to accept or reject, and she therefore has no contract
and cannot insist on taking the models.

Finally, Cynthias claim must be considered. Again, Cynthias first letter to

Wyman is an offer and Wymans reply that he wanted $1,300 is a counter-
offer. To decide whether Cynthias letter accepting Wymans offer to sell at
$1,300 is valid, the rules state that provided the letter of acceptance is
properly addressed and stamped the acceptance will be valid from the time of
posting even if the letter never arrives: < Household Fire Insurance and
Carriage Accident Insurance Co v Grant >. The letter must be properly posted
and the post must be an accepted means of communication. It is clear that in
Wymans case the post is an accepted means of communication, both
because he has used it, and because the original advertisement invited
replies by post. This postal rule does not apply to revocations of offers, which
must actually be received to be valid. This situation is illustrated by the case
of < Byrne v Van Tienhoven > where a letter revoking the original offer was
put in the post before the offerees acceptance letter was posted, but only
arrived after the acceptance had been posted. The court held that the
acceptance was valid and there was a contract as the posting rules applied.
The same principle would apply to Cynthias claim and a valid contract exists
with Wyman.

I would therefore advise Wyman that he is bound to sell the models to Cynthia
for $1,300.