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Business law - Essay Example

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The issue in respect of this question requires an analysis of invitation to treat, unilateral offer, offer, acceptance, rejection and past consideration. Each of these elements would be discussed and an evaluation in line with the facts would be made…
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Download file to see previous pages The issue in respect of this question requires an analysis of invitation to treat, unilateral offer, offer, acceptance, rejection and past consideration. Each of these elements would be discussed and an evaluation in line with the facts would be made. An offer has been defined as an expression of willingness by one party known as the offeror, to contract or be bound on stated terms, provided that such terms are accepted by the party to whom the offer is made that is the offeree. The courts have distinguished between an offer and an invitation to treat, this is because the latter is merely an expression of willingness by one party to enter into negotiations and so is not unconditional and there is a lack of intention. Invitation to treat has been defined as an expression of willingness of a party to enter into negotiations with another with the hope that a contract would be reached at the end of such negotiations. (Fisher v Bell)1. As for advertisements, it has been strictly said to be an invitation to treat (Partridge v Crittenden)2, however, the courts have interpreted advertisements in a manner which allows for certain exceptions to be created and the main reasons for that has been cited to be intention to be bound and certainty (Carlill v Carbolic Smoke Ball Co.)3. Further, the advertisement of an auction sale is generally only an invitation to treat (Harris v Nickerson)4. The opinions as to when an offer is made have differed. The next issue that would be looked into is acceptance which is defined an unequivocal assent to the terms that has been proposed by the offeror. The general rule for the acceptance of an offer is that the offer should be accepted unconditionally and must be communicated to the offeror. ( Holwell Securities v. Hughes5) . However, there are a number of exceptions to the rule of communication of acceptance and one of them is the highly criticised postal rule. The rule has been criticised because of the adoption it took despite the various option that were available to it. In Adams v Lindsell6 it was held that the acceptance takes place when the offeree posts the letter of acceptance. Instantaneous modes of communication has lately been scrutinized by the courts (Lord Wilberforce in Brinkibon Ltd. v Stahag Stahl GmbH), the courts have been supportive of the fact that communication should be made to the offeree and he must have knowledge of that in respect of instantaneous mode of communication. As far as the advertisement that has been placed by Mary is concerned it can be said that it is clearly an invitation to treat and cannot in any way be construed to be a unilateral offer as there is no intention in that respect. In respect of the information that she provided to Rose it was merely an invitation to treat whereby she discussed that she would reduce price and so there was no offer in that respect. In respect of the message that had been left by Rose of the 800 pound, it can be said that that was an offer which had been made by Rose. As far as acceptance was concerned, Mary did try to make the acceptance, but the problem that arises in that respect is the fact that there had been a problem in respect of the instantaneous mode of communication and so the communication did not take place and therefore the acceptance is not effective. In the case of Matthew it can be said that he did not make an offer was it was conditional upon him receiving the payment from his father and therefore does not satisfy the criteria for a valid offer to be existent. In respect of silence constituting to be acceptance it has been an accepted phenomena that silence cannot constitute to be acceptance. (Felthouse v. Bendley)7 . Considering the decision on silence, the act of John leaving the cheque and silence of Mary would not lead to an acceptance. Furthermore, the actions of Mary destroying the cheque also go against the notion of acceptance by conduct and therefore no acceptance has taken place. As far as past consideration is concerned, the courts have clearly laid down the fact ...Download file to see next pagesRead More
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