Business, Contract, and Tort Law - Essay Example

?Business Law 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 that past consideration cannot amount to good consideration unless the exceptions that have been laid down in the case of Pao on v. Lau Yiu Long are satisfied. In respect of Louisa it is evident that this was past consideration. Furthermore, there had been nothing implied in respect of payment between the parties and homework would not create a legal obligation on the parties, thus the conditions of Pao On would not be satisfied. Thus no contract can come into existence. As far as Richard is concerned, an offer has been made and acceptance has taken place, agreement as to price has also been made and therefore a valid contract has been concluded thereby creating a legal obligation on both Richard and Mary. Finally there would be no encumbrance or hurdle for Mary or Richard to the selling of the car by the other parties to this scenario as no legal obligation has been created between them and Mary. 2. The issue in this question requires an analysis in respect of the decision of Donoghue, why it’s considered to be important and the basis on which the judges made an evaluation on the case. The law on negligence has been defined as conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm. The decision of the House of Lords in Donoghue v Stevenson8, is an important decision in a number of ways. The all important doctrine of negligence was developed in this case and an evaluation of the concept of duty of care was established by the courts in this case. The brief facts of the case are that Donoghue purchased a ginger beer in a cafe and while consuming it noticed that there was a decomposed snail were existent in the bottle which led Donoghue to have stomach pain and eventually being diagnosed with gastroenteritis and in state of sever shock. An action was brought against Mr. Stevenson, the manufacturer, whereby claims for damages worth ?500 were made. Even though the case was settled out of court it is important. The doctrine of negligence was developed by Lord Atkin in Donoghue v. Stevenson9 in which it was stated that a person must take reasonable care to avoid acts or omissions which if seen with reasonable foreseeability are likely to cause an injury to that person’s neighbour. The definition of neighbour was stated to be a person who would be so closely and directly affected by the act that he should be contemplated of when doing the act or omission. The courts took into account the neighbour principle when establishing the duty of care and found that the manufacturer should have had in contemplation and it was reasonably foreseeable that there might be a risk to the final consumer. Furthermore, the courts decided upon the proximity aspect of the manufacturer and the final consumer. As far as breach of duty of care was concerned, the courts found that there was a duty of care that was owed by the manufacture and the condition that he was suffering from was because of the negligence of the manufacturer, therefore there had been a breach of the duty of care. In respect of causation the courts considered the fact that even thought there had been various middlemen involved before the ginger beer reached the final consumer that would in no way breach the chain of causation and therefore the claim would stand against the manufacturer. As far as the damages aspect of the case is concerned, the court did point out due to inaction on the part of the manufacturer there had been an injury therefore loss and damage was attributable to the manufacturer. However, since Mr.Stevenson died the case was settled out of court for an amount lesser than what had been claimed as damages. The importance of the case can be seen in the fact that the neighbor principle that was laid down by Lord Atkin was reformed and is till today being used. The introduction of this established what is now a firmly embedded principle of duty of care whereby injury should not be caused to those who can be reasonably be contemplated to be affected by such acts or omissions. The case also had the effect of allowing a claim where privity of contract was nonexistent thereby allowing claims for negligence against people who would be held accountable on the basis that they owed a duty of care. References MCKENDRICK, E. (2009). Contract law. Basingstoke, Palgrave Macmillan MARKESINIS, B. S., JOHNSTON, A. C., & DEAKIN, S. F. (2007). Markesinis and Deakin's tort law. Oxford, Oxford University Press. Read More