The Advertisement of a Bilateral Contract - Coursework Example

? They need to demonstrate good research and presentational skills, and advice them to solve the problem. Inserts His/Her Inserts Grade Course Customer Inserts Tutor’s Name The first part of the issue is that is advertisement an invitation to treat or is that an offer. The difference is that offer has to be accepted or not but invitation to treat is a further negotiation, a step towards the formation of a binding legal contract. There are other issues as well like for instance communication of the acceptance, is there any need for communicating acceptance or can the offer waive the communication. Then comes the postal analogy rule; the acceptance of the offer when the offeree posts the letter but can this apply to fast instantaneous communication like e-mail. Lastly, is the counter offer which kills the original offer; terminates it. BODY 1) An invitation to treat is an indication of a willingness to conduct business, it is invitation to make an offer or commence negotiations. Courts have considered whether or not a communication was an invitation to treat in a wide variety of circumstances. The Advertisement which Peter places is an invitation to treat just like Partridge v Crittenden (1968), the advertisement of a bilateral contract and Carlil v Carbolic Smoke Ball Company (1893), was decided that an advertisement was a unilateral offer. 2) In Partridge v Crittenden The appellant placed an advertisement in the issue for 13 April 1967, of a periodical “Cage and Aviary Birds” with the words “Quality British ABCR … Bramble finch cocks, Bramble finch hens, 25s each“. It was put under the general heading “Classified Advertisements. In no place was there any direct use of the words “offer for sale”. T, having seen the advertisement, written for a hen, which was sent to him and arrived on 2 May 1967, wearing a closed-ring. T was able to remove it without harm to the bird. The appellant was charged with unlawfully offering for sale a certain wild live bird, viz, a brambling, other than a close-ringed specimen bred in captivity, contrary to s 6(1) of, and Sch 4 to, the Protection of Birds Act, 1954. The justices were of opinion that the advertisement was an offer for sale, and that the brambling was not a close-ringed specimen bred in captivity because it was possible to put off the bird's ring. On appeal against conviction. It was held, the advertisement in the present case constituted in law an invitation to treat, not an offer for sale, and the offence which was charged against the appellant was not, therefore, established. While on the other hand; 3) Carlil v Carbolic Smoke Ball Company was decided on the different basis. The defendants, the proprietors of a some medical preparation called "The Carbolic Smoke Ball," issued an advertisement in which they promised to pay 100 to any person who contracted the influenza after having used one of their smoke balls, in a certain specified manner and for a specified time. The plaintiff, upon the faith of the advertisement, purchased one of the defendants' smoke balls, and used it in the manner and for the specified time, but nevertheless contracted the influenza. It was held that the above facts made a contract by the defendants to pay the plaintiff 100. In the event which happened; that such contract was neither a contract by way of wagering within 8 & 9 Vict. c. 109, nor a policy within 14 Geo. 3, c. 48, s. 2; and that the plaintiff was entitled to recover the sum promised. 4) 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 and the offeror cannot waive communication if that would be to the detriment of the offeree . 5) This can be shown in the case Felt house v Bindley (1862). The plaintiff (F) brought an action against the defendant auctioneer (B) for the conversion of a horse. In December 1860, a conversation had taken place between F and his nephew (N) regarding to the buying of a horse by F from N. On January 1, 1861, N had written to F stating that he had heard from his father that F considered that he had bought the horse for ?30. N asserted that the price was not ?30 but 30 guineas. On January 2, F wrote to N stating that he thought that, although the price offered was 30 guineas, they had done a deal at ?30. F's letter concluded as follows: "However, as there may be a mistake about him, I will split the difference ... If I hear no more about him, I consider the horse mine at [?30 and 15 shillings]". N did not reply to that letter. The horse was sold by mistake at an auction conducted by B on February 25. On February 27, N wrote to F apologizing for the mistake, referring to the horse "I sold to you" and offering to let him have another horse. The issue was whether the horse had become the property of F at the time of the sale on February 25. It was held that there had been no complete bargain on January 2, and the offer made by F in his letter of that date stood as an open offer. Although the events had shown that N in his own mind intended F to have the horse at the price which F had named, namely ?30 and 15 shillings, he had not communicated his intention to F or done anything to bind himself. Nothing, therefore, had been done to vest the property in the horse in F before February 25, when the horse was sold by B. There had been no bargain to pass the property in the horse to F and he therefore had no right to complain of the sale. But in the case of a unilateral contract Carlill v Carbolic 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. It depends upon Peter too, if he had accepted Michael's offer then he would be in breach of the contract with Andrew and so acceptance should be communicated but the offeror can waive the right of communication. But revocation can occur if there is a faster means of revocation than the acceptance. Like for instance Dunmore v Alexander (1830) and Wenkheim v Arndt (1873) these are important cases but have little emphasis because they are not the binding authority because the former is a Scottish case and the latter is a case from New Zealand. Counter offer also exists. 6) If in his reply to an offer, the offeree introduces a new term or varies the terms of the offer, then that reply cannot amount to an acceptance. Instead, the reply is treated as a "counteroffer", which the original offeror is free to accept or reject. A counter-offer also amounts to a rejection of the original offer which cannot then be subsequently accepted. For instance; 7) Hyde v Wrench where The Defendant on the 6th of June offered in writing to sell his farm for ?1000; but the Plaintiff offered ?950, which the Defendant on the 27th of June, after consideration, refused to accept. On the 29th the Plaintiff, by letter agreed to give ?1000, but there appeared to be no assent on the part of the Defendant, though there had been no withdrawal of the first offer. Held, that there was no binding contract within the Statute of Frauds. A counter-offer should be distinguished from a mere request for information. 8) Stevenson v Mclean, The defendant, being possessed of warrants for iron, wrote from London to the plaintiffs at Middleborough asking whether they could get him an offer for the warrants. Further communication ensued, and ultimately the defendant wrote to the plaintiffs fixing 40s. per ton, net cash, as the lowest price at which he could sell, and stating that he would hold the offer open till the following Monday. The plaintiffs on the Monday morning at 9.42 telegraphed to the defendant: "Please wire whether you would accept forty for delivery over two months, or if not, longest limit you could give." The defendant did not reply to this telegram and after its receipt on the same day he sold the warrants, and at 1.25 P.M. telegraphed to plaintiffs that he had done so. Before the arrival of his telegram to that effect, the plaintiffs having at 1 P.M. found a purchaser for the iron, sent a telegram at 1.34 P.M. to the defendant stating that they had secured his price. The defendant refused to deliver the iron, and thereupon the plaintiffs brought an action against him for non-delivery thereof. The jury found at the trial that the relation between the parties was that of buyer and seller, not of principal and agent. The state of the iron market was very unsettled at the time of the transaction, and it was impossible to foresee when the plaintiffs' telegram was sent at 9.42 A.M. how prices would range during the day. It was held that under the circumstances the plaintiffs' telegram at 9.42 ought not to be construed as a rejection of the defendant's offer, but merely as an inquiry whether he would modify the terms of it, and that, although the defendant was at liberty to revoke his offer before the close of the day on Monday, such revocation was not effectual until it reached the plaintiffs; consequently the defendant's offer was still open when the plaintiffs accepted it, and the action was, therefore, maintainable. CONCLUSION So if 950 and 1010 can be treated as counter offers and can kill original offer that is 2000. But if Peter had accepted it from either of the interested parties it will clearly depend on the means of communication to revoke the offer before the acceptance. Law does not have a fix answer as the Mathematics. REFERENCES Elements of the Contract Law; Chapter 2 Lexis Nexus Online Library; Partridge v Crittenden [1968] 1 WLR 1204 Lexis Nexus Online Library; Carlill v Carbolic Smoke Ball Company [1893] EWCA Civ 1 Law Teacher; Formation of a Contract Lexis Nexus Online Library; Stevenson, Jacques & Co v McLean (1880) 5 QBD 346 West Law Online Library; Hyde v Wrench [1840] EWHC Ch J90 Read More