The Birth of the Couch Potato and Its Subsequent Mutations - Essay Example

?Word Count: 1518 Simon ordered 20 coffee machines from a wholesaler. He revoked his offer a day before he received a letter that the wholesaler has accepted his request to purchase the product. There was no contract created yet, as there was a valid revocation that was communicated to the wholesaler through telefax. In Byrne v. Van Tienhoven (1880) 1it was held that an offer can be withdrawn before it is accepted and it is immaterial whether the offer is expressed to be open for acceptance for a given time or not. Acceptance on the other hand is “when the person to whom the proposal is made signifies his assent thereto, the proposal is said to be accepted, and a proposal, when accepted, becomes a promise”. 2 In order to have a valid contract, an offer must sufficiently be accepted. In this case when Simon ordered the 20 coffee machines, there was already a valid offer to purchase the said product from the wholesaler. In order that the contract may be perfected, what is needed is the valid acceptance of the wholesaler. But since the wholesaler made no reply since the offer to purchase on Thursday, Simon had every right to change his mind. When Simon sent a telefax canceling his order on Tuesday thereafter, there was still no perfected contract. The general rule is, once the acceptance is made, the offerror can no longer revoke the offer. But the acceptance becomes binding on the offerree only when it reaches the offeror. In this case the telefax was sent on Tuesday, while the letter of acceptance, confirming the order was received the next day. In order for the contract to be valid, acceptance of the offer is needed to create legal rights and duties arising from such agreement. In this case Simon has revoked his offer prior having knowledge of the acceptance the next day. In the case of Entores Ltd. v Miles Far East Corporation (1955)3, where the parties where dealing on an agreement based on telex communication between parties, it was held that it was not until the message of acceptance was received by the offeror until the contract is deemed perfected or complete. Lord Denning, Master of the Rolls, provided that if a notice of withdrawal was sent during business hours, the withdrawal was effective as of the time it was received by the telex machine, regardless if the other party received it or not based on their own neglect.4 In our case it is obvious that after a number of days without confirmation of the request, Simon sent a telefax canceling his order on Tuesday, a day before there was a valid acceptance from the wholesaler. Hence, he had all the right to revoke his primary offer to purchase the coffee makers since there was no acceptance yet made, there was no contract yet perfected or created at that time. The telefax remains open to receive messages, there was also no confirmation made by the wholesaler that the request to purchase their product was even accepted, in addition to that there was no consideration or payment made. Simon had timely withdrawn his offer before any contract was created, hence he will not be liable for any demand based on breach of a contract that was never effective. The use of disclaimers in shops or place of business is generally allowed by law, but the rule is not absolute, as it does not include responsibility for negligence as provided in the Unfair Contract Terms Act 1977. Simon cannot rely on his general disclaimer from preventing himself to be sued based on negligence that resulted to damages. The law provides that although disclaimers are allowed, it cannot be made or put in general terms as to limit the liability of the owner in every case, as the limited liability depends on the nature of the obligation and must be reasonable as not to cause boundless responsibilities. It was held in the case of Staples v West Dorset District Council (1995) 5that a disclaimer or notice to be valid must renounce responsibility based on specific issues6. In this case, Simon posted a notice renouncing all responsibility for any and all damages and injuries, providing that “he is not be liable for injury to persons or damage to their property howsoever caused in the shop”. The injury that occurred was based on the negligence of his own sales assistant when he left a pile of stock on the floor after restocking the shelves. Simon and his staff should have been more cautious in making sure that the premises are safe enough for his customers. The obligation of Simon was raised not based on contract but on tort, as his staff was negligent in their work to cause damage to a customer. Simon is liable for the negligent acts of Danni as his employee and as his agent. Simon as a shop owner has liability to his “invitees” based on the Occupiers liability doctrine; he has a less onerous duty to take reasonable care to prevent damage from an unusual danger. This duty is described as "a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there".7 Even if he has placed sufficient warning or notice absolving him of any liability whatsoever, the law provides that "where damage is caused to a visitor by a danger of which he had been warned by the occupier, the warning is not to be treated without more as absolving the occupier from liability, unless in all the circumstances it was enough to enable the visitor to be reasonably safe"8 Although the concept of volenti non fit injuria provides no liability for risks willingly accepted as his by the visitor",9 as explained in the Unfair Contract Terms Act 1977, Simon cannot exclude himself of any liability based on such notice of disclaimer provided in the premises for personal injury due to negligence, hence he is liable to the injury caused to the customer. The landmark case of Carlill v Carbolic Smoke Ball Company (1893)10 an advertisement can be a unilateral contract, where the offeree accepts the offer by performing an act which indicates their agreement with the bargain or can be an “invitation to treat”, which is essentially an invitation to the general public based on an advertisement to make an offer on a particular item. An offer has to be specific in order to actually constitute as an offer and distinguished from an “invitation to treat”. Advertisements can be considered an “invitation to treat” such as in the case of Partridge V Crittenden (1968). 11In this case the advertisement is considered as an “invitation to treat”, since Simon did not have an unlimited supply of dishwashers and could not sell one to everyone who replied ‘accepting’ his ‘offer’.12 When Mary called to pay for ?180, to which Simon agreed. There was a counter-offer or in this case, an offer to the “invitation to treat” that was accepted by Simon. In the case of Hyde vs. Wrench (1840) 13a counter offer to buy goods for a different price to that specified in the offer effectively over rules the original offer. Hence, when Simon accepted the offer by phone, there was already a binding contract; the original offer of ?200 in the advert has been subrogated by the new offer. The display in Simon’s window of the vacuum cleaner is a mere invitation to treat and not an offer to sell. This is established in Fisher v Bell (1961).14 Simon had the option to sell or not to sell the said product. As held in the case of Pharmaceuticals Society of Great Britain v. Boots Cash Chemists (1953), 15the Court held that “although goods are displayed and it is intended that customers should go ahead and choose what they want, the contract is not completed until, the customer having indicated the articles which he needs, the shopkeeper, or someone on his behalf, accepts that offer”.16 There is no breach of contract since there was no valid contract perfected at the time, the vinculum juris not being established, as Simon did not accept the offer made by the customer in buying the product that was displayed in his shop’s window. We have explained that in order to have a binding contract an offer must be clear, definite and complete and there must be an acceptance of the same communicated to the offeror. But an offer must be distinguished from an “invitation to treat”, such as this case. An invitation to treat is not an offer sell, rather it is an invitation to make an offer. The customer may make an offer to Simon to buy the displayed product in his shop’s window, but it is within the seller’s discretion to either accept or reject the same in order that a contract becomes binding. Hence, without any valid contract, breach of contracts is untenable. Bibliography Laws: Occupiers' Liability Act 1957 Unfair Contract Terms Act 1977 Law of Contract Act 2002 Cases Byrne v. Van Tienhoven [1880] 5 CPD 344 Carlill v Carbolic Smoke Ball Company [1893] 1 QB 256 (CA) Fisher vs. Bell [1961] 1 QB 394 (HC.) Hyde v. Wrench, [1840] 3 Bea 334; 49 ER 132. Entores Ltd. v Miles Far East Corporation [1955] 2 QB 327 (CA) Partridge vs. Crittenden [1968] 1 WLR 1204 (HC) Pharmaceutical Society of Great Britain v. Boots Cash Chemists [1953] 1 Q.B. 401; 1 All E.R. 482 Staples v West Dorset District Council [1995] 93 LGR 536 (CA) Read More