The Concept of Offer - Admission/Application Essay Example

Contract Law: Sample questions and case analysis 28.01 Contract Law: Sample questions and case analysis The concept of Offer According to Bhana, Nortje and Bonthuys (2009:56), offer refers to exclusive willingness of one party to contract for a given item of good or service. It is made by an offeror with prime intention that if such offer is accepted by a second party in accordance to the prescribed terms, it shall be binding. Thus, offer presents and implied intention to create legal relations as observed by Burnham (2011:117). Upon acceptance the two parties are legally bound by the terms thereto and as such, the contract shall have been affected (Scott & Kraus, 2007:83). For instance, if a passenger goes to a bus terminus where there is a cab plying the desired route at $10; it means that the operator of such cab is offering transport services at the prescribed price for the designated route. If the passenger decides to take the cab, his action implies that he has accepted the offer and thus entered into a binding contract. On the contrary, an offeror may revoke the offer before it is accepted. Thus, a party cannot bring an action if he accepts an offer that had been revoked before such acceptance. Offer can either be oral or written and as discussed by (DiMatteo, 1998:152), offer has several ingredients including request for information, counter-offer and intention to create legal relations. Moreover, an offer must be explicit in nature with no ambiguity whatsoever. Where the offeror makes an offer, a party might want to know more about details of the offer. This does not suggest that the second party thereof has indeed accepted the offer. In any case, request for information cannot warrant enforcement of a contract since there has not been any contract between the two parties as illustrated in Harvey v Facey [1893] AC 552 Privy Council (Bhana, Nortje & Bonthuys, 2009:57). It was held that the complainant could not succeed because there offer had not been accepted since the telegram reply only stating the lowest price but did not indicate whether the supplier would sell the Bumper Hall Pen. Where one party has offered to sell a pet dog at $200 and an interested party bargain to buy the pet at $180, the original contract offer no longer stand since the bargained price is a formal counter offer. It repudiates the initial offer and the buyer cannot succeed in an action to enforce the contract if the owner of the said dog sells it to a third party at whatever cost. The other elements of offer are inherent in window displays and auctions. Goods displayed on the shelves of a shop implies that the owner of such goods have tendered to treat the sale of the displayed goods at a given price. If a buyer walks into the shop, picks the good and presents it to the teller, the buyers offer to buy such commodity at the tendered price. The contract is entered into when the teller accepts the buyer’s money for the purchase of the commodity offered (DiMatteo, 1998:155). In an auction, the highest bidder offers to buy the property under auction at the highest bidding price. If the auctioneer drops the winning hummer, he will have accepted the offer and thus there will be a binding contract between the auctioneer and the highest bidder. Objective and Subjective Theories of Contract law Since the law of contract aims to create a mutual relation between the parties to a contract, the basic philosophy therein revolves around explicitly of actions and words. In that light, every contract infers a meeting of the minds as reiterated by Burnham (2011:71). Besides, it is worth noting that whoever draws the contract always aspires to address his interest. Therefore, the law recognizes the possibility of malice and unexpressed intentions. For that reason, the law of contract distinguishes the dogmatic interpretation of objective and subjective theories. Objective theory refers to the positivity of good faith implied in the contract by the parties thereto. It culminates for the actions and words expressed by the parties in a given contractual negotiations. Where one party conceals some set of information which could alter the terms of the contract, he is said to be implying a subjective theory in the proposed contract. In that manner, the subjective party cannot enforce an action if the contract is breached by the swindled party. This culminates from the legal understanding that mental assent and subjective intent are irrelevant to any contract (DiMatteo, 1998:163). Consequently, if one of the parties happens to subjectively initiate any contractual relations for the sale of a particular good or service, the law shall protect the weaker party. To that end, it is not a matter of what one intends to do or what he assumes in the contract. Rather, the legal traditions have always considered the expressed actions and words of the parties in determining the object of a disputed contract (Scott & Kraus, 2007:85). In the case of Lucy v Zehmer [1954] 196 Va.493, 84 S.E.2d 516, the defendant made Lucy to believe that he offered to sell him a piece of land registered as Ferguson Farm at $50,000 (Scott & Kraus, p.86). In actual sense, Zehmer was not serious about this contract as he only intended to make it as a joke. Nevertheless, the defendant did not inform Lucy of such unexpressed intentions until the plaintiff had received the title of the land in question. It is imperative that the defendant’s words and actions were objective to the reality of the perceived contract for the sale of Ferguson Farm to Lucy. It was held that the defendant’s manifestations would make any reasonable person to believe that indeed he meant to sell the said land. Thus, the contract binding and he was liable for specific performance. Where similar subjective conflicts arise due to mischievous unexpressed intentions of the seller, the court always consider the objective theory to settle the argument. On the other hand, a buyer may withhold substantial information from the seller whose discovery might change the terms of such contract. In that case, the courts would be at liberty to affirm the subjective theory as demonstrated in Empro Manufacturing Co., Inc. v Ball-Co Manufacturing, Inc., [1989] 870 F.2d 423, 7th Cir. (Burnham, 2011: 116). Consideration for a promise Primarily, consideration refers to the benefit derived in return for a specified delivery of good or service. Where a party has promised to deliver a certain object to another party, the second party ought to perform something to consider such delivery. Otherwise, the failure of consideration would be sufficient ground for restitution in favour of the injured party (Witting, 2005:41). In terms of promise, it is the legal duty of both parties to perform their obligations for a promise contract to be valid. For instance, when a man promises to buy his daughter a pair of sneakers if she prepares him toasted sandwich every Sunday for two weeks; both parties must perform their obligations if the daughter assented to the promise. Thus, if the daughter makes him toasted sandwich for the specified period, the father cannot argue that he had previously bought her a pair of sneakers unconditionally and therefore, no need for buying her a second pair. The law will not allow that father to escape liability since previous consideration cannot suffice in a fresh promise (Bhana, Nortje & Bonthuys, 2009: 182). Consideration must always relate to the present promise and the reverse is true. Where a party promises to accomplish a certain obligation, contract law require the beneficent to effect a specific consideration in relation to the present promise. Thus, a party cannot successfully benefit from a promise based of some other considerations delivered in the past as argued by Scott and Kraus (2007:126). It is vital for both parties to a promise contracts to agree on the terms and conditions thereto. Where a promise is made, the two parties must understand their obligations in the said contract. Thus, it is inadmissible when a party decides to enjoy delivery of a promise in return of a past consideration. If that is the case, the situation is no better than paying debt for past performance which was subjected to different terms. In any case, past consideration invalidates a promise contract and cannot therefore be enforced (Burnham, 2011:89). Case study 1: Aunty Jane v Sylvia The facts of this case state that Jane gave her niece a gift of $1,000 last Christmas. While Jane did not specify the intended use of such gift, she hoped that her niece Sylvia would use such sum of money to advance her education. On the contrary, Sylvia wasted $600 on fun and frolic. The legal question is whether Aunty Jane is entitled to restitution of the spent $600 or the remaining $400. To commence with, it has to be understood that the circumstances under which Jane gave her niece the gift were perpetually domestic in nature. Secondly, the gift was given within the ordinary period of Christmas and end-year festivities. Lastly, there were no conditions attached to the $1,000 gift for which Sylvia was bound to honour. Thus, there was no reasonable cause whatsoever for Sylvia or any other persons in a similar position to believe that such monies were intended for the furtherance of education. Considering the case from a different perspective, it is important to highlight three fundamental facts. First, whether there was any binding contract between Aunty Jane and Sylvia, and two; if the transaction thereto was intended to create legal relations. Thirdly, the legal position of the two parties in light of consideration and restitution. It is evident that Aunty Jane gave her niece a gift within the confines of domestic affairs. It was during Christmas where any reasonable person would interpret such gift as a gesture in good faith intended to enhance marrying and festive enjoyment. With that in mind, it is clear that the transaction thereto was not meant to create legal relations. Besides, there were to terms imposing any obligatory responsibility on Sylvia as to how she ought to have spent her gift of $1,000. If she squandered $600, she indeed acted within her rights as a beneficent to do so because she was not subjected to any restrictions whatsoever. Taking into account the fact that the transaction hitherto was purely a domestic affair not intended to create legal relations; there was no binding contract between the two. To that end, Aunty Jane cannot succeed in restitution of the squandered $600 as illustrated in Jones v Padavatton [1969] 1 WLR 328 (Scott & Kraus, 2007:93). In the above case, a mother bought her daughter a large house in Trinidad in her pursuit to convince the daughter to leave a well-paying job in the US for further studies in Trinidad. However, the mother promised to pay her $200 if she quit her job for the proposed studies. Indeed, the daughter consented to the plea and left her job to go to Trinidad. It is worth noting that the underlying intent of the mother was that her daughter could join her in Trinidad as a lawyer. When her daughter married and failed to complete her studies, the court held that the complainant could not succeed in restitution of the house because the matter was purely domestic and not intended to create legal relations. Examining the second position of the case between Aunty Jane and Sylvia, the remaining $400 has not been compensated in any way. In other expressions, there has not been any form of consideration for the gift delivered to Sylvia inasmuch as it remains a domestic affair. According to DiMatteo (1998:266), a person has legal rights to reclaim some gift, if in her view there was no consideration to that effect. Similarly, Sylvia had not performed any act to suffice reasonable consideration with regard to the $1,000 gift received from Aunty Jane. Unlike in Jones v Padavatton [1969], Sylvia’s case construed total failure of consideration as reiterated by DiMatteo (p.267). Therefore, Jane can succeed in a restitution suit to recover the remaining $400 from her niece Sylvia even if there was no legally binding contract. Case study 2: Quality Clothing & Neighbour v Brian The facts of this case are as follows: Brian failed to provide his minor child named Taylor with adequate food and clothing. For that reason, Brian’s neighbor and the Quality Clothing decided to feed and clothe Taylor respectively. The legal questions are whether Quality Clothing can successfully maintain a cause of action in restitution for the clothing provided. The second question is whether the neighbour can succeed under the same grounds. From the onset, we must understand that the law of the State in which Brian and his son lived demands that a father should support his minor children. On the other hand, it is reasonably practicable that such laws do not set any limits as to what amount of support befits a minor other than the necessaries such as clothing, food, shelter, medical care and education. In addition, such laws only relate to the provision of basics to enhance survival of the minor rather than unwarranted luxury as argued by Witting (2005:36). On the other hand, ordinary way of life suggests that a parent owes his children the duty of skill and care including provision of such needs as outlined herein. Thus, Brian is expected by law and nature to provide support for his minor son Taylor. His failure to do so amounts to substantive breach of the law and parental duty of care in line with the arguments of Bhana, Nortje and Bonthuys (2009:327). Having established the fundamentals of this case, it is also important to distinguish the legal perspective of sufficiency versus adequacy. For instance, one pair of trousers is reasonably sufficient to clothe a child for at least a month. However, it might not necessarily be an adequate supply of clothing in the eye of a classical society. In this case, Brian failed to supply his son with adequate clothing. The case, however, insinuates that he indeed supplied Taylor with sufficient clothing to serve the purpose of legal necessity. As such, it is safe to assume that Brian acted within his financial abilities to afford his son some cloth which was reasonably sufficient but not necessarily adequate. To that end, Quality Clothing has no reasonable grounds to intervene by providing Taylor with adequate clothing. The action of Quality Clothing would therefore be deemed as an act of ex gratia rather than a necessity of the law as demonstrated by Burnham (2011:254). Thus, Quality Clothing cannot successfully maintain a cause of action in restitution for the clothing provided. In terms of food, a child reasonably needs adequate food due to his active lifestyle as well as growth prospects. If a parent fails to supply a child with adequate food and not just sufficient food, it is reasonable that such a child may move to the neighbouring houses to scavenge for additional food. If a child fails to get such adequate food supply from whatever source, he is undauntedly predisposed to the risk of contracting disease as well as nutrition deficiency disorders, such as marasmus, kwashiorkor, anemia, scurvy and stunted growth. In addition, his immune system is compromised making him susceptible to opportunistic diseases such as tuberculosis, pneumonia and stomach ulcers. It is, therefore, unreasonable for a parent not to supply his child with adequate food. Taking such prologue into legal, medical and ethical consideration; it was prudent of the neighbour to intervene. The decision to feed Taylor was both ethical and legal for the overall well-being and survival of the child. Therefore, the law shall hold Brian liable for the recovery of all costs incurred by the neighbour in feeding Taylor following failure of parental care (Witting, 2005:37). Works Cited Bhana, Deeksha, Nortje, Minette & Bonthuys, Elsje. Students Guide to the Law of Contract, (2nd Edn), Alphen: Kluwer, 2009. Print. Burnham, Scott. Contract Law for Dummies. Hoboken, NJ: John Wiley & Burnham Sons, 2011. Print. DiMatteo, Larry. Contract Theory: The evolution of contractual intent. East Lansing, MI: Michigan State University Press, 1998. Print. Scott, Robert & Kraus, Jody. Contract Law and Theory, (4th Edn). Ayton, OH: LexisNexis Matthew Bender, 2007. Print Sears, William. The Family Nutrition Book: Everything You Need to Know About Feeding Your Children - From Birth through Adolescence. NY: Little, Brown and Company, 1999. Print. Witting, Christian. ‘Duty of Care: An analytical approach’. OJLS, 33, 2005:25. Print. Read More