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Commercial Law - Essay Example

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Summary
The very existence of a commercial contract and the terms contained in that agreement which will be legally enforceable are based on the doctrine of offer and acceptance. Evaluate whether this formulaic approach to contract can truly reflect the intention of commercial…
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Commercial Law
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Commercial Law

Download file to see previous pages... and acceptance can be reconciled with the implied notion that contracts reflect the actual intention of the contractual parties, particularly in commercial contracts and contemporary contracting methods1.
This issue has often arisen in misrepresentation claims and breach of contract claims disputing pre-contractual negotiations, which are often viewed as by commercial parties as evidence of contractual intention2. However, the intention indicated in pre-contractual negotiations can pose problems if not accounted for in the body of the signed contract itself. The problem of intention is further compounded by the general judicial presumption of the sanctity of contract particularly in commercial contract cases3.
The focus of this paper is to critically evaluate whether the doctrine of offer and acceptance can truly reflect the intention of contracting parties particularly in commercial contracts. This is particularly evident with regard to the contemporary methods of communication and the evolution of business transactions in the 19th century however required the reshaping of existing offer and acceptance rules to ensure a reasonable degree of precision and certainty in contractual negotiations4.
This led to the introduction of the postal rule, which in general terms stipulates that contractual acceptance becomes effective once posted rather than when it is received by the offeror5. The overriding purpose of the rule was to create certainty in contractual transactions, however the current methods of communication such as internet, fax and telephone has rendered the postal rule a difficult model to apply in practice.
However, the reality of commercial contracting has led commentators to question whether the entrenched rule of acceptance and the postal rule can validly represent contractual intention, particularly with the increasing use of email in contractual negotiations6. For example, Capps suggests that “given the advances in communication systems since ...Download file to see next pagesRead More
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