Chapter 2 Offer and acceptance

Contents
Introduction 21 22 23 24 25 26 27 The offer Communication of the offer Acceptance of the offer Communication of the acceptance Exceptions to the need for communication of the acceptance Method of acceptance The end of an unaccepted offer Reflect and review 22 23 26 27 28 29 31 32 37

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Introduction
The law of contract is mainly about the enforcement of promises. Not all promises are enforced by courts. To enforce a set of promises, or an agreement, courts look for the presence of certain elements. When these elements are present a court will find that the agreement is a contract. This is a somewhat artificial process. To a certain extent, courts will find that some agreements simply look like contracts and they then reason backward and find the elements necessary to form a contract. As a student you need to be aware of the elements required to constitute an enforceable contract. To say that we have a contract means that the parties have voluntarily assumed liabilities with regard to each other. The process of agreement begins with an offer. For a contract to be formed, this offer must be unconditionally accepted. The law imposes various requirements as to the communication of the offer and the acceptance. Once there has been a valid communication of the acceptance, the law requires that certain other elements (covered in Chapters 3 and 4 of this guide) are present. If these elements are not present, a court will not find that a contract exists between the parties. In the absence of a contract, neither party will be bound to the tentative promises or agreements they have made. It is thus of critical importance to determine whether or not a contract has been formed.

Learning outcomes
By the end of this chapter and the relevant reading, you should be able to:
u u u u u u u u u

explain what an offer is distinguish between an offer and other communications state when an offer has been communicated explain what a valid acceptance is (and is not) illustrate the necessity of communicating the acceptance indicate what the exceptions are to the necessity of communicating the acceptance explain what occurs when the offeror stipulates a certain method of acceptance state what happens to an offer which is not accepted illustrate when an offer expires.

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2.1

The offer
Essential reading
McKendrick, Chapter 3: Offer and acceptance up to 3.7 Acceptance, pp.2634. Poole, Chapter 2: Agreement Section 1 Subjectivity versus objectivity to Section 4 Acceptance, pp.1736. It is important to understand that it is not the subjective intentions of the parties that determine the legal effect of their words or actions but the objective inference from them. That is to say, the offer is interpreted according to an objective intention the interpretation the reasonable person in the position of the offeree would place upon the statement or action of the offeror. This is crucial in answering the basic question what is an offer? See Centrovincial Estates v Merchant Investors Assurance Company (1983) regarding the objective requirement. 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 or discussions required. The nature of an offer is encapsulated by two cases involving the same defendant, Manchester City Council. The Council decided to sell houses that it owned to sitting tenants. In two cases, the claimants entered into agreements with the Council. The Council then resolved not to sell housing unless it was contractually bound to do so. In these two cases the question arose as to whether or not the Council had entered into a contract. In one case, Storer v Manchester City Council (1974), the Court of Appeal found that there was a binding contract. The Council had sent Storer a communication that they intended would be binding upon his acceptance. All Storer had to do to bind himself to the later sale was to sign the document and return it. In contrast, however, in Gibson v Manchester City Council (1979), the Council sent Gibson a document which asked him to make a formal invitation to buy and stated that the Council may be prepared to sell the house to him. Gibson signed the document and returned it. The House of Lords held that a contract had not been concluded because the Council had not made an offer capable of being accepted. Lord Diplock stated: The words may be prepared to sell are fatal so is the invitation, not, be it noted, to accept the offer, but to make formal application to buy on the enclosed application form. It is a letter setting out the financial terms on which it may be the council would be prepared to consider a sale and purchase in due course. An important distinction between the two cases is that in Storers case there was an agreement as to price, but in Gibsons case there was not. In Gibsons case, important terms still needed to be determined. It is very important to realise from the outset that not all communications will be offers. They will lack the requisite intention to be bound upon acceptance. If they are not offers, what are they? At this point, we will distinguish an offer from other steps in the negotiation process. Other steps in the negotiation process might include a statement of intention, a supply of information or an invitation to treat. We will examine these in turn.

2.1.1 A statement of intention

In this instance, one party states that he intends to do something. This differs from an offer in that he is not stating that he will do something. The case of Harris v Nickerson (1873) illustrates this point. The auctioneers advertisement was a statement that he intended to sell certain items; it was not an offer that he would sell the items.

2.1.2 A supply of information

In this instance, one party provides information to another party. He supplies the information to enlighten the other party. The statement is not one that is intended to be acted upon. See also the case of Harvey v Facey (1893) where one party telegraphed, in response to the query of the other, what the lowest price was that he would accept for his property.

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2.1.3 An invitation to treat

This is a puzzling term. An invitation to treat is an indication of a willingness to conduct business. It is an invitation to make an offer or to commence negotiations. Courts have considered whether or not a communication was an offer or an invitation to treat in a wide variety of circumstances. You should examine the following instances where courts have found that the communication was not an offer but an invitation to treat. a A display of goods is generally an invitation to treat. See Pharmaceutical Society v Boots (1953) (note the rationale behind treating the display as an invitation to treat rather than as an offer) and Fisher v Bell (1961). Where the display is made by a machine, the display will probably be an offer. See Thornton v Shoe Lane Parking (1971).

Activity 2.1
Your local grocery shop places a leaflet through your letterbox. On the leaflet is printed Tomorrow only, oranges are at a special low, low price of 9p/kilo. Has the grocery shop made you an offer? If you visit the shop, must they sell you oranges at this price? b An advertisement is an invitation to treat. See Partridge v Crittenden (1968) the advertisement of a bilateral contract. The form of the contract will give rise to different results Carlill v Carbolic Smoke Ball Company (1893) decided that an advertisement was a unilateral offer.

Figure 2.1 The advertisement for Carbolic Smoke Balls

Activity 2.2
How were the facts of Carlill v Carbolic Smoke Ball different from the usual situation involving an advertisement?

Elements of the law of contract 2 Offer and acceptance

c A request for tenders is an invitation to treat and the tender is the offer. See Harvela Investments Ltd v Royal Trust Co of Canada Ltd (1985). Note, however, that the invitation to treat may contain an implied undertaking to consider all conforming tenders, as in Blackpool and Fylde Aero Club Ltd v Blackpool Borough Council (1990). d An auctioneers request for bids is an invitation to treat. The bid is an offer; when the auctioneer brings his hammer down he has accepted the offer. In the case of auctions without a reserve price, the auctioneer enters into a collateral (or separate) contract. The nature of the collateral contract is that the auctioneer will accept the highest bid. See Warlow v Harrison (1859) and Barry v Davies (2000).

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Self-assessment questions
1 How does an invitation to treat differ from an offer? 2 Does a railway or airline timetable constitute an offer? 3 How do courts treat the display of goods in a shop window differently from a display in an automated machine?

Summary
A contract begins with an offer. The offer is an expression of willingness to contract on certain terms. It allows the other party to accept the offer and provides the basis of the agreement. An offer exists whenever the objective inference from the offerors words or conduct is that she intends to commit herself legally to the terms she proposes. This commitment occurs without the necessity for further negotiations. Many communications will lack this necessary intention and thus will not be offers. They may be statements of intention, supplies of information or invitations to treat. Although the distinction between an offer and other steps in the negotiating process is easy to state in theory, in practice, difficult cases arise.

Reminder of learning outcomes

By this stage you should be able to achieve the following learning outcomes:
u u

explain what an offer is distinguish between an offer and other communications (e.g. an invitation to treat, a request for information, a statement of intention).

Useful further reading

Anson, pp.2738. Unger, J. (1953) Self-service shops and the law of contract, 16 MLR 369. Winfield (1939) Some aspects of offer and acceptance, 55 LQR 499.

16 MLR 369: This is a standard reference to volume 16 of the Modern Law Review. The article appears at page 369 of that volume.

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2.2

Communication of the offer

Essential reading

McKendrick, Chapter 3: Offer and acceptance 3.9 Acceptance in ignorance of the offer, pp.3536. Poole, Chapter 2: Agreement Section 4 B Acceptance must be made in response to the offer, pp.4446. To be effective, an offer must be communicated. Another way of stating this is to say that there can be no acceptance of the offer without knowledge of the offer. The reason for this requirement is that if we say that 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. Stated another way, an acceptance cannot mirror an offer if the acceptance is made in ignorance of the offer. The authorities are, however, divided on the need to communicate the offer. In the case of Gibbons v Proctor (1891) a policeman was allowed to recover a reward when he sent information in ignorance of the offer of reward. The better view is thought to be expressed in the Australian case of R v Clarke (1927): there cannot be assent without knowledge of the offer; and ignorance of the offer is the same thing whether it is due to never hearing of it or forgetting it after hearing. The case of Tinn v Hoffman (1873) deals with the problem of cross-offers.

Activity 2.3
Was the decision in R v Clarke influenced by the consensus theory of contract? Should it have been?

See Chapter 1, section 1.4.3.

Activity 2.4
How might the decision have been different if Clarke had been a poor but honest widow?

Reminder of learning outcomes

By this stage you should be able to achieve the following learning outcome:
u

state when an offer has been communicated.

Useful further reading

Anson, pp.4950.

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2.3

Acceptance of the offer

Essential reading
McKendrick, Chapter 3: Offer and acceptance 3.7 Acceptance, pp.3334. Poole, Chapter 2: Agreement Section 4 A The mirror image rule, pp.3643. For a contract to be formed, there must be an acceptance of the offer. The acceptance must be an agreement to each of the terms of the offer. It is sometimes said that the acceptance must be a mirror image of the offer. The acceptance can be by words or by conduct. See Brogden v Metropolitan Railway Company (1871), where the offeree accepted the offer by performance. More recent instances of acceptance by conduct can be found in Confetti Records v Warner Music UK Ltd (t/a East West Records) [2003] EWHC 1274 where Confetti Records sent Warner a music track and an invoice; this was an offer capable of acceptance by Warners conduct in producing an album which contained the track. In Day Morris Associates v Voyce [2003] EWCA Civ 189 it was held that an estate agents offer to market a property had been accepted by the conduct of the client. The clients conduct was allowing the agent to advertise the property and show large numbers of people around it. Acceptance occurs when the offerees words or conduct give rise to the objective inference that the offeree assents to the offerors terms. If the offeree attempts to add new terms when accepting, this is a counter-offer and not an acceptance. A counter-offer implies a rejection of the original offer, which is thereby destroyed and cannot subsequently be accepted. See Hyde v Wrench (1840). Where the offeree queries the offer and seeks more information, this is neither an acceptance nor a rejection and the original offer stands. See Stevenson, Jacques & Co v McLean (1880). In some cases, the parties will attempt to contract on (differing) standard forms. In this instance, there will be a battle of the forms with offers and counter-offers passing to and fro. The Court of Appeal has held that the last shot wins this battle of the forms. See Butler Machine Tool v Ex-Cell-o (1979).

Activity 2.5
A wrote to B offering 300 bags of cement at 10 per bag. B wrote in reply that she was very interested but needed to know whether it was Premium Quality cement. The following morning, soon after A read Bs letter, B heard a rumour that the price of cement was about to rise. She immediately sent a fax to A stating, Accept your price of 10 for Premium Quality. Assuming that the cement actually is Premium Quality, is there a contract? (If so, does the price include delivery?) Explain your reasoning.

Activity 2.6
What is the position under the last shot rule if, after the exchange of forms, the seller fails to deliver the goods?

Reminder of learning outcomes

By this stage you should be able to achieve the following learning outcome:
u

explain what a valid acceptance is (and is not).

Useful further reading

Anson, pp.3841.

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2.4

Communication of the acceptance

Essential reading
McKendrick, Chapter 3: Offer and acceptance 3.8 Communication of the acceptance, 3.10 Prescribed method of acceptance and 3.11 Acceptance by silence, pp.3435, 3637. Poole, Chapter 2: Agreement Section 4 Acceptance, pp.3659. The general rule is that acceptance is not effective until it is communicated to the offeror. This is sometimes expressed by saying that the acceptance cannot be made through silence. See Felthouse v Bindley (1862). The offeror cannot waive communication if that would be to the detriment of the offeree.

Activity 2.7
You offer to buy a kilo of oranges from your local shop for 9p. Nothing further is said, nor do you receive any written correspondence. The next day, however, a kilo of oranges arrives at your house from the local shop. Is there a valid acceptance of the contract? Has there been a communication of the acceptance? See Brogden v Metropolitan Railway Company (1871). In the case of a unilateral contract, Carlill v Carbolic Smoke Ball Company (1893) establishes that the performance is the acceptance and there is no need to communicate the attempt to perform. Communication of the acceptance is waived because it would be unreasonable of the offeror to rely on the absence of a communication which would have been superfluous or which no reasonable person would expect to be made.

Self-assessment questions
1 What was the detriment to the offeree in Felthouse v Bindley? 2 Could an offeror use this case to avoid liability?

Unilateral contract: one where one party makes an offer if the other party does something, but the other party need not agree to do that thing. An example would be offering a reward for information about a crime.

Reminder of learning outcomes

By this stage you should be able to achieve the following learning outcome:
u

illustrate the necessity of communicating the acceptance.

Useful further reading

Anson, pp.4143.

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2.5

Exceptions to the need for communication of the acceptance

Essential reading
McKendrick, Chapter 3: Offer and acceptance 3.12 Exceptions to the rule requiring communication, pp.3740. Poole, Chapter 2: Agreement Section 4 D Communication of the acceptance to the offeror, pp.4659. As we saw above, the general rule is that for an acceptance to be valid it must be communicated to the offeror. It must be brought to the offerors attention. To this general rule there are certain exceptions situations where the law does not require communication of the acceptance. The principal exception is the postal acceptance rule.

2.5.1 Where the offeror has waived the requirement of communication

As we have seen above, in certain circumstances the offeror may waive the necessity for communication. This is what occurred in Carlill v Carbolic Smoke Ball Co. A weakness to this exception is that it appears to be of limited application where there is a bilateral contract. In Felthouse v Bindley, the argument can be made that the uncle had clearly waived any need for the nephew to communicate his acceptance of the offer and yet the court held that the offer had not been accepted.

2.5.2 The postal acceptance rule

Communication by post gives rise to special practical difficulties. An offer is posted. The offeree receives the offer and posts her acceptance. The letter of acceptance will take several days to arrive. At what point is the acceptance good? If one waits until the offeror receives the letter, how will the offeree know when this is? The offeree has known from the time she posted the letter that she has accepted the offer. There is also the occasional problem of the letter that never arrives at its destination. To overcome these problems, the courts devised an exception to the general requirement of communication (which would have been that the acceptance is only good when the letter arrives). The exception was devised in the cases of Adams v Lindsell (1818) and Household Fire Insurance v Grant (1879). These decisions establish the postal acceptance rule, that is, that acceptance is complete when posted. This puts the risk of delay and loss on the offeror. It is important to understand that the rule is an exception to the general rule requiring communication. The postal acceptance rule will only prevail in certain circumstances. It will prevail where use of the post was reasonably contemplated by the parties or stipulated by the offeror. See Household Fire Insurance v Grant (1879). It may be that the post is the only reasonable form of communication available. See Henthorn v Fraser (1892). The operation of the postal acceptance rules creates practical difficulties. The greatest problem is that contracts can be formed without the offeror being aware of the contract. For example, an offeror makes an offer. Unbeknown to him, the offeree accepts. The offeror then revokes the offer before receiving the postal acceptance. The offeror contracts with another party over the same matter and then receives the postal acceptance from the original offeree. The offeror is now in breach of his contract with the original offeree. Partly because of these problems and partly because of technological advances (the post is no longer a such crucial method of communication), courts seem to be confining the scope of the postal acceptance rule. This is a rationale behind the decision in Holwell Securities v Hughes (1974). In this case, the postal acceptance rule did not apply because the offeror did not intend that it would apply. While this case is authority for the proposition that the terms of an offer must be met for acceptance to be valid, it also illustrates the reservations modern courts have over the postal acceptance rule.

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As modern forms of communication such as fax and email have become almost instantaneous, courts have shown a marked reluctance to extend the postal acceptance rule to these new forms of communication. However, in an early case involving a telegram, a form of the postal acceptance rule was applied. See Bruner v Moore (1903). In later cases involving telexes, the courts refused to extend the application of the postal acceptance rules. See Entores v Miles Far East Corp (1955) and Brinkibon Ltd v Stahag Stahl (1982). These cases are also important for the principles they establish with respect to instantaneous forms of communication. English contract law awaits a case involving an almost instantaneous communication such as a fax or an email. It is clear that a contract can be formed through such mediums (see, for example, Allianz Insurance Co-Egypt v Aigaion Insurance Co SA [2008] EWCA Civ 1455). Because of the technology involved in both these forms of communication they are not entirely instantaneous. An email, in particular, may take some time to arrive at its destination, depending upon the route it takes to its recipient. As Poole has suggested (2.6.5.4 Electronic means of communication) there are two possible approaches to the email communication of the acceptance: postal analogy or receipt rule.

Activity 2.8
What rules do you think courts should adopt for communication by fax or email?

Self-assessment questions
1 What reasons have been given by the courts for the postal acceptance rule? 2 A posts a letter offering to clean Bs house. B posts a letter accepting As offer. Later in the day, Bs house burns down and B now no longer needs a house cleaner. B immediately posts a letter to A rejecting As offer. Both of Bs letters arrive at the same time. Is there a contract or not? See Countess of Dunmore v Alexander (1830). 3 In what circumstances will the postal acceptance rules not operate? 4 When, if ever, can an offeror waive the need for communication?

Summary
For a contract to be formed, the acceptance of an offer must be communicated. There are exceptions to this general rule. The most significant of these exceptions is the postal acceptance rule. The postal acceptance rule is, however, something of an anachronism in the modern world and is unlikely to be extended in future cases.

Reminder of learning outcomes

By this stage you should be able to achieve the following learning outcome:
u

indicate what the exceptions are to the necessity of communicating the acceptance.

Useful further reading

Anson, pp.4347. Hudson, A. (1966) Retraction of letters of acceptance, 82 LQR 169. Gardner, S. (1992) Trashing with Trollope: a deconstruction of the postal rules, 12 OJLS 170.

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2.6

Method of acceptance
Essential reading

McKendrick, Chapter 3: Offer and acceptance 3.10 Prescribed method of acceptance, pp.3536. Poole, Chapter 2: Agreement Section 4 D Communication of the acceptance to the offeror, pp.4659. Sometimes an offeror may stipulate that acceptance is to be made using a specific method. See Eliason v Henshaw (1819) and Manchester Diocesan Council for Education v Commercial and General Investments (1970). In other cases the required method for communicating acceptance may also be inferred from the making of the offer. See Quenerduaine v Cole (1883). The problem that arises is this: if the offeree uses another method of acceptance, does this acceptance create a contract? The answer is that if the other method used is no less advantageous to the offeror, the acceptance is good and a contract is formed. This is the result unless the offeror stipulates a certain method of acceptance and further stipulates that only this method of acceptance is good. See Manchester Diocesan Council for Education v Commercial and General Investments (1970).

Self-assessment questions
1 Where a method of acceptance has been prescribed by the offeror: a May the offeree choose to use another (equally effective) method of communicating his acceptance? b What does equally effective mean? c Whose interest should prevail? 2 Can an offer made by fax be accepted by letter?

Summary
If an offeror intends that a certain method of acceptance is to be used, he must stipulate this method and that only an acceptance using this method is to be used. If he only stipulates a method, an offeree can use another method provided that the other method is no less advantageous than the method stipulated.

Reminder of learning outcomes

By this stage you should be able to achieve the following learning outcome:
u

explain what occurs when the offeror stipulates a certain method of acceptance.

Useful further reading

Anson, pp.5051.

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2.7

The end of an unaccepted offer

Essential reading
McKendrick, Chapter 3: Offer and acceptance 3.13 Acceptance in unilateral contracts to 3.14 Termination of the offer, pp.4042. Poole, Chapter 2: Agreement Section 5 Revocation of an offer, pp.5967. Offers do not exist indefinitely, open for an indeterminate time awaiting acceptance. Indeed, some offers may never be accepted. What we will consider at the conclusion of this chapter is what happens to an offer before it has been accepted. There is no legal commitment until a contract has been concluded by the acceptance of an offer.

2.7.1 Change of mind

Because there is no legal commitment until a contract has been formed, either party may change their mind and withdraw from negotiations. See Offord v Davies (1862) and Routledge v Grant (1828). In situations where an offeror has stipulated that the offer will be open for a certain time period, he or she can nevertheless withdraw the offer within this time period. This will not be the case, however, where the offeror is obliged (by a separate binding collateral contract) to keep the offer open for a specified period of time. For the revocation of an offer to be effective, there must be actual communication of the revocation. See Byrne v van Tienhoven, 1880. It is not necessary for revocation to be communicated by the offeror. Communication to the offeree through a reliable source is sufficient. See Dickinson v Dodds (1876).

Activity 2.9
Your neighbour offers to sell you her car for 10,000. She tells you to think about it and let me know by Monday. On Saturday, she puts a note under your door to say forget it I want to keep my car. Can she do this? Explain. By what process must the offeror of a unilateral contract revoke his offer? The problem of an appropriate process exists when the offer is made to the world. In this situation, what must the offeror do to alert the world? English law provides no answer to this question, but see Shuey v USA (1875). If the offeree rejects an offer, it is at an end. See Hyde v Wrench (1840). Different problems arise when it is the offeree who changes his or her mind. For example, if after posting a letter of acceptance, the offeree informs the offeror by telephone, before the letter arrives, that they reject the offer, should the act of posting an acceptance prevail over the information actually conveyed to the offeror? In the absence of English cases the books refer to a number of cases from other jurisdictions see Dunmore v Alexander (1830) (Scotland) and Wenkheim v Arndt (1873) (New Zealand) but when citing them, it is important to emphasise that they are not binding and indeed have very little persuasive authority. The question must therefore be answered primarily as a matter of principle. Treitel suggests that the issue is whether the offeror would be unjustly prejudiced by allowing the offeree to rely on the subsequent revocation (p.27).

2.7.2 If a condition in the offer is not fulfilled, the offer terminates

Where the offer is made subject to a condition which is not fulfilled, the offer terminates. The condition may be implied. See Financings Ltd v Stimson (1962). In this case, the offeror purported to accept an offer to purchase a car after the car had been badly damaged.

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2.7.3 Death: if the offeror dies, the offer may lapse

Again, a point on which the cases divide. On the one hand, Bradbury v Morgan (1862) 158 ER 877 (Ex) held that the deceased offerors estate was liable on the offer of a guarantee after the death of the offeror. However, obiter dicta in Dickinson v Dodds (1876) state that death of either party terminated the offer because there could be no agreement. The best view is probably that a party cannot accept an offer once notified of the death of the offeror but that in certain circumstances the offer could be accepted in ignorance of death. The death of an offeree probably terminates the offer in that the offerees personal representatives could not purport to accept the offer.

2.7.4 Lapse of an offer

The offeror may set a time limit for acceptance; once this time has passed the offer lapses. In many cases, the offeror can revoke the offer before the time period lapses provided that the offer has not been accepted. See Offord v Davies (1862). In cases in which no time period is stipulated for the offer, an offeree cannot make an offeror wait forever. The offeror is entitled to assume that acceptance will be made within a reasonable time period or not at all. What a reasonable time period is will depend upon the circumstances of the case. See Ramsgate Victoria Hotel v Montefiore (1866).

Self-assessment questions
1 Why can the offeror break his or her promise to keep the offer open for a stated time? 2 In a unilateral contract which is accepted by performance, when has the offeree started to perform the act (so as to prevent revocation by the offeror)? Does the offeror need to know of the performance? 3 How can the offeror inform all potential claimants that the offer of a reward has been cancelled? 4 Will there be a contract if the offeree posts a letter rejecting the offer but then informs the offeror by telephone, before the letter arrives, that he accepts the offer? 5 What is the purpose of implying that the offer is subject to a condition?

Summary
Until an offer is accepted, there is no legal commitment upon either party. Up until acceptance, either party may change their mind. An offeror may revoke an offer or an offeree may reject an offer.
u

An unaccepted offer expires either:

u u

at the end of any time period stipulated, or within a reasonable time period where no time period is stipulated.

u u

An offer will lapse where it is made on an unfulfilled condition. An offer may lapse when the offeror dies.

Reminder of learning outcomes

By this stage you should be able to achieve the following learning outcomes:
u u

state what happens to an offer which is not accepted illustrate when an offer expires.

Useful further reading

Anson, pp.5261.

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Examination advice
The detailed rules of offer and acceptance provide a ready source of problems and difficulties on which an Examiner can draw. Here are some examples.
u u u u u u

Is a particular statement an offer or an invitation to treat? Is there a counter-offer or is it merely an enquiry? When does a posted acceptance fall outside the postal rule? Was the offeror or offeree free to have second thoughts? When is a telephone call recorded on an answering machine actually received? When is an email received? There are also several everyday transactions where the precise contractual analysis is not immediately apparent the motorist filling up with petrol (gas), the passenger riding on a bus, the tourist buying a ticket for the Underground (subway) from a machine and so on. The fact that some of these problems are not covered by authority does not make them any less attractive to an examiner indeed, the opposite might well be the case. The key to most problems of offer and acceptance is the idea that the law should give effect to actual communication wherever possible.

Sample examination questions

Question 1 Alice wrote to Bill offering to sell him a block of shares in Utopia Ltd. In her letter, which arrived on Tuesday, Alice asked Bill to let me know by next Saturday. On Thursday Bill posted a reply accepting the offer. At 6pm on Friday he changed his mind and telephoned Alice. Alice was not there but her telephone answering machine recorded Bills message stating that he wished to withdraw his acceptance. On Monday Alice opened Bills letter, which arrived that morning, and then played back the message on the machine. Advise Alice. Question 2 Cyril, a stamp dealer, had a rare Peruvian 5 cent blue for sale. He wrote to Davina, a collector who specialises in Peruvian stamps, asking whether she would be interested in purchasing it. Davina wrote in reply, I am willing to pay 500 for the blue; I will consider it mine at that price unless I hear to the contrary from you and will collect it from your shop on Friday next week. Advise Davina as to the legal position: a if Cyril disregarded Davinas letter and sold the stamp to Eric for 600 b if Cyril put the stamp on one side in an envelope marked Sold to Davina but Davina decided that she no longer wished to buy it.

Advice on answering the questions

Question 1 It is important to break the question down into its constituent issues. You are considering each of these issues with a view to determining whether or not a contract has been formed. Bill will argue that he is not obliged to purchase the shares because no contract has been formed. The issues are: a What is the effect of Alice writing to Bill to offer to sell him shares? b What is the effect of Alices stipulation as to the time the offer is open? c What is the effect of Bills posting a reply? d What is the effect of Bills change of mind? Is there effective communication when a message is left on an answering machine? e Which of Bills two communications is determinative? When the issues are listed in this form it is apparent that the biggest issue is whether or not a contract has been formed. This is dependent upon whether Alices offer has been accepted. This, in turn, depends upon whether Bill has communicated his acceptance or his rejection. We will examine these issues in turn.

Elements of the law of contract 2 Offer and acceptance

a Alices letter appears to be an offer within the criteria of Gibson v Manchester City Council and Storer v Manchester City Council. You should outline these criteria and apply them to the facts sometimes the designation of an offer in a problem question or in everyday life turns out not to be an offer in the legal sense. b Alices stipulation that the offer is open for one week is not binding (apply the criteria in Offord v Davies) unless there is a separate binding contract to hold the offer open. There does not appear to be such a separate binding agreement. c Because Bill posts his letter of acceptance, we need to consider whether or not the postal acceptance rules apply. Consider the criteria in Household Fire Insurance v Grant. Does the case apply here? In the circumstances, it probably does. Alice has initiated communications by post and thus probably contemplates that Bill will respond by post. In these circumstances, the acceptance is good when Bill posts the letter it is at this point that a contract is formed. It does not matter that the letter does not arrive until Monday (at which point the offer will have expired, given Alices stipulation as to the time period). A possible counter argument to this is that Alice asked Bill to let her know by Saturday and this let me know means that there must be actual knowledge of his acceptance that it must really be communicated. This necessity for actual communication means that Bills acceptance is not good until Monday when Alice actually opens the letter. To apply this counter argument, one needs to consider the criteria set out in Holwell Securities v Hughes. One might also note that since that decision, courts are reluctant to extend the ambit of the postal acceptance rule. d Bill changes his mind. Here there is no authority as to the effect of his change of mind. In addition, given the two possible positions in point (c) above, two possible outcomes exist. If the postal acceptance rules apply, then a contract has been formed and Bills later change of mind cannot upset this arrangement. However, this seems a somewhat absurd result since Alice learns almost simultaneously of the acceptance and the rejection. Bill has attempted to reject the offer by a quicker form of communication than the post. In these circumstances, you could apply the reasoning of Dunmore v Alexander and state that no contract has been formed between the parties. In addition, given the reservations of the court in Holwell Securities v Hughes, it seems improbable that a court would rely upon the postal acceptance rule, an unpopular exception to the necessity for communication, to produce an absurd result. The second possible outcome here is that the postal acceptance rules never applied and no contract could be formed until Alice opened the letter. Since she received the rejection at almost the same time, she is no worse off (see reasoning above) by not having a contract. You might also wish to consider the application of the rules for instantaneous communications in Entores v Miles Far East Corp and Brinkibon v Stahag Stahl. Should the communication made by telephone be deemed to have been the first received? If so, there is no contract. e This is really the answer to the question. For the reasons stated above, the rejection should be determinative. Accordingly, no contract arises in this situation and Bill is not obliged to buy the shares in Utopia Ltd. Question 2 Note at the outset that in two-part questions such as this you must answer both parts (unless clearly instructed that candidates are to answer either a or b). Again, your approach should be to break down the question into its constituent parts:
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The effect of Cyrils letter is it an offer or an invitation to treat? The effect of Davinas letter is it an acceptance? Does the postal acceptance rule apply? Is Davinas letter a statement of intention? Is Davinas letter an offer? Can she waive the necessity for the communication of the acceptance? By considering these issues, you can determine whether a contract has been formed or not. With respect to part (a), if a contract has been formed, then Cyril is in breach of this contract when he sells the stamp to Eric. You need to consider whether Cyril has made an offer has he exhibited a willingness to commit on certain terms within Storer v Manchester City Council (1974)? Or is his communication an invitation to treat or a step in the negotiation of a contract? If his letter is an offer, it seems reasonable that he expects an acceptance by post and the postal acceptance rules will apply: Household Fire Insurance v Grant (1879).

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On balance, it seems unlikely that his letter is an offer it is phrased in terms that seek to elicit information and not to be binding upon further correspondence from Davina. Davina may have made an offer and waived the necessity for further communication see Felthouse v Bindley (1862). It is, however, possible that either Davina never made an offer to buy the stamp (she was merely giving an indication of her top price) or that Cyril never accepted the offer. In these circumstances, no contract has been formed with Davina and Cyril is free to sell the stamp. With regard to part (b), if Davina has (and can, given the law in this area see Felthouse v Bindley (1862)) made an offer, then Cyril has (if possible) accepted the offer when he takes the step of setting aside the stamp. In these circumstances, a contract has been formed and Davina is obliged to buy the stamp. There are, however, significant weaknesses in reaching this conclusion primarily that she seems to be indicating the top price she would pay for the stamp and that following Felthouse v Bindley (1862) she cannot waive the necessity for communication of the acceptance.

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Reflect and review

Look through the points listed below. Are you ready to move on to the next chapter? Ready to move on = I am satisfied that I have sufficient understanding of the principles outlined in this chapter to enable me to go on to the next chapter. Need to revise first = There are one or two areas I am unsure about and need to revise before I go on to the next chapter. Need to study again = I found many or all of the principles outlined in this chapter very difficult and need to go over them again before I move on. Tick a box for each topic. Ready to move on I can explain what an offer is. I can distinguish between an offer and other communications. I can state when an offer has been communicated. I can explain what a valid acceptance is (and is not). I can illustrate the necessity of communicating the acceptance. I can indicate what the exceptions are to the necessity of communicating the acceptance. I can explain what occurs when the offeror stipulates a certain method of acceptance. I can state what happens to an offer which is not accepted. I can illustrate when an offer expires. Need to Need to revise first study again

If you ticked need to revise first, which sections of the chapter are you going to revise? Must revise 2.1 2.2 2.3 2.4 2.5 2.6 2.7 The offer Communication of the offer Acceptance of the offer Communication of the acceptance Exceptions to the need for communication of the acceptance Method of acceptance The end of an unaccepted offer Revision done

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Notes