The Advertisement for the Pet Toys - Assignment Example

The Advertisement for the Pet Toys Part I The advertisement for the Pet toys that stated that the prices started from $5 may be regarded as an offer or as an invitation to treat, each of these concepts implying different legal issues. According to Paul Richards (2007, 16) “An offer is an expression of a willingness to contract on certain terms made with the intention that a binding agreement will exist once the offer is accepted.”1 Thus, resulting from the brief definition of an offer it is possible to assume that Petz R Us’ advertisement represents an offer to contract. Their offer was made in writing, as a published advertisement in a local magazine. Moreover, the offer was published in a local magazine, which is read by a large group of persons. This offer is unilateral as it “promised” in the advertisement to sell the pet toys to anyone for the price starting with $5. Therefore, Pets R Us made a legal conditional promise. On the other hand, considering the conditions the advertisement was made in, it may be regarded as an invitation to treat. An invitation to treat represents “an expression of willingness to negotiate. A person making an invitation to treat does not intend to be bound as soon as it is accepted by the person to whom the statement is addressed.”2 Therefore, the main difference between an invitation to treat and an offer consists in their binding power. That is why establishing the right nature of the advertisement is imperative, considering the legal implications of both. Advertisements are generally regarded as invitations to treat; therefore, the person that is advertising is not compelled to sell to every customer. The display of goods with a price ticket attached in a shop window or on a supermarket shelf is not an offer to sell but an invitation for customers to make an offer to buy. (Fisher v Bell [1960] 3 All ER 731) The case of Partridge v Crittenden [1968] 1 WLR 1204 is a leading case in this matter. The court held that where the appellant advertised to sell wild birds, he was not offering to sell them. Lord Parker CJ commented that “it did not make "business sense" for advertisements to be offers, as the person making the advertisement may find himself in a situation where he would be contractually obliged to sell more goods than he actually owned.”3 This makes sense, since in the case of Petz R Us, if the advertisement is to be regarded as an offer, it means that the store is bound to sell pet toys to everyone who has read the advertisement and has shown interest in buying the product. Considering that the advertisement was published in a magazine and was available to everybody who read it, it would have been at least awkward to expect the store to have enough supplies for everybody. I believe that, since the advertisement did not include any words that would oblige the advertiser to sell to everybody who has read it (unlike the case of Carlill v Carbolic Smoke Ball Company [1893] 1 QB 256, where the advertisers included in the advertisement the binding obligation to pay anyone £100 under certain conditions and therefore, the advertisement was considered an offer), it must be regarded as an invitation to treat, which is not binding whatsoever. In addition, according to the case of Harvey v Facey [1893] AC 552 a statement of the minimum price at which a party may be willing to sell will not amount to an offer. Considering the above facts, James’s letter should not be regarded as an acceptance, but as an offer. He offered to negotiate as a response to the invitation to treat. In spite of James’ believing otherwise, that is that he is accepting an offer, and not actually offering something, his letter is to be regarded as an offer, because an invitation to treat may not be accepted, it may be negotiated by an offer coming from the respondent to the invitation to treat. According to Halsbury (2007) "An invitation to treat is a mere declaration of willingness to enter into negotiations; is is not an offer, and cannot be accepted so as to form a binding contract."4 Through his letter, James made an offer to the store, by which he offered to buy 10 pet toys at the total price of $50, which is the minimum stated in the advertisement: $5 per item. The response of the shop manager– Mary – trough which she indicates that James will need to provide an additional payment to purchase the toys is to be regarded as a counter offer. According to article 19 of the United Nations Convention on Contracts for the International Sale of Good states that “A reply to an offer which purports to be an acceptance but contains additions, limitations or other modifications is a rejection of the offer and constitutes a counter-offer.”5 Mary replied to James’s letter informing him that the price is higher than he offered and this means she made a counter offer. The same provision is available in the following letters of Mary and James, each of them terminating the previous offer and submitting a new counter offer. James had not received Mary’s last letter and when he showed up at the store, believing that he is going to buy the toys for the price of $7 per item, he was charged with $9 dollars per toy. Considering that none of the above letters between Mary and James can be considered acceptance, but counter offers, James cannot expect his counter offer regarding the price of $7 per item to be automatically accepted. Neither can Mary, regarding the offer of $8 per toy, which has not been legally accepted by James. The rules of acceptance cannot be applied in this case, because none of the letters can be considered acceptance. Therefore, James should address to Mary in the store, and solve the problem regarding his being charged with $9 per item. One of them should make a new offer, and the other should accept it in order for the purchase to take place. Part 2 The fact that Mary and James are siblings does not represent a legal impediment or change the nature of their contractual relations. In the case law, there are cases where litigations between siblings occur regarding joint ownership and real estate inherited from their parents. Except that, siblings are entitled by law to conclude sell-buy agreements with each other, as any natural persons do. Assuming that the pet toys were not inherited from their parents by both Mary and James, and that the pet toys where exclusively in Mary’s ownership, there are no legal issues concerning the negotiation and concluding of a sell-buy agreement between them. On the other hand, if the pet toys where inherited by the siblings, the succession statutory law should be applied, considering the particularities of the case. There are no legal provisions regulating the commercial relations between siblings and that, no matter the kinship between them, they are both natural persons and have the right to conclude contracts with each other. Part 3 I believe that James has no legal rights against Mary concerning the lack of supplies. Firstly, as it was stated above in Part 1, none of the letters between James and Mary can be considered acceptance, each of them being a counter offer, which automatically terminated the previous offer. Therefore, considering that no acceptance took place, Mary did not bind herself or the store to any agreement with James that would have obliged her to have in stock the quantity of items that James required. Secondly, the advertisement in the magazine did not represent an offer, but an invitation to treat, which “… is a mere declaration of willingness to enter into negotiations; it is not an offer, and cannot be accepted so as to form a binding contract."6 The fact that the advertisement did not represent an offer is also proven by the definition of the offer. According to Janet Whittle (208), “An offer is a proposal that is made to a specific individual or entity to enter into a contract. The proposal must include definite terms and must indicate the offeror’s intent to be bound by an acceptance.”7 It is clear that the advertisement did not constitute an offer in the terms of the above definition, as it was simple information that pet toys were sold at the price starting with $5. Moreover, in the case of Partridge v Crittenden [1968] 1 WLR 1204 Lord Parker CJ commented that “it did not make "business sense" for advertisements to be offers, as the person making the advertisement may find himself in a situation where he would be contractually obliged to sell more goods than he actually owned.”8 Therefore, James is not entitled to any legal rights against Mary in this case. Word count: 1555 References: 1. Andrew Burrows. (2007). Casebook on Contract. UK: Hart Publishing 2. Clashfern, Lord Mackay, Halsbury's Laws of England (London: LexisNexis-Butterworths, 2007) 3. Janet Whittle (1997). Canada Business: The portable encyclopedia for doing business in Canada. USA: World Trade Press 4. Partridge v Crittenden [1968] 1 WLR 1204 5. Richards, Paul (2007). Law of Contract.8th Edition. England. Edinburgh Gate. 6. United Nations Convention on Contracts for the International Sale of Good, article 19 Read More