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Offer and Acceptance
Irish Contract
| Question | Answer |
|---|---|
| Offer | A clear and unambiguous statement of the terms upon which the offeror is willing to contract should the offeree decide to accept- R.Clark |
| It is important that the offer | itself manifest an intention to be bound. |
| If the offeror is merely | feeling his way towards an agreement, or initiating negotiations from which an agreement might or might not result, there is no offer. It constitutes an invitation to treat, an"offer to receive offers" |
| What matters is | whether you intend to make a full and final statement upon which you intend to be bound |
| and whether | the other party intends to make a statement of acceptance. |
| Auction Sales | The bidder is the offeror and the auctioneer accepts the offer. |
| Barry v Davies In the case of highest bidder auctions, | the offer was made by the auctioneer to sell to the highest bidder, and this was accepted when the bid was made. The auctioneer was bound to sell to the highest bidder. There was a collateral contract between the auctioneer and the highest bidder. |
| Over the years the courts have held that certain situations | constitute invitations to treat rather than offers |
| invitation to treat(itt); for example, display of goods and goods in a self-service shop / List four | Pharmaceutical Society of GB v Boots Cash Chemists 1) Advertisments 2) Auctions 3) (application for )Tenders 4) Window displays |
| Advertisements will generally constitute | invitations to treat |
| Though as a general rule advertisements merely constitute invitations to treat, it is possible for an advertisement to be construed as an offer, if | the court feels that it displays a definite intention to be bound: Carlill, Lefkowitz |
| In such a case, the advertisement may constitute | a unilateral offer. Advertisements of rewards fall into this category. |
| Carlill v Carbolic Smokeball Co. | advertisements of unilateral contracts/Unilateral offers to world at large which include an offer to be bound/There were an offer, an acceptance and consideration made. |
| A unilateral offer generally (Carlill ) | does not require communication of acceptance |
| Leonard v PepsiCo | The advertisement did not constitute an offer, merely invitation to treat. because no reasonable person would have have expected to get the military jet. An obvious joke cannot constitute an offer. |
| Lefkowitz v Great Minneapolis Surplus Store | the ad was sufficiently clear, definite and explicit' and 'left nothing open for negotiation'. constituted a valid offer[unilateral offer]. |
| The company should always enter a term: | "offer is subject to availability" If this term was not included, it could be argued that this was an advertisement, not an offer. |
| Tenders(入札) | The advertisement for tenders is generally seen as an invitation to treat unless it contained an undertaking to sell to the “highest” or “lowest” bidder. |
| Those submitting the tender (or a completed tender form) setting out the terms upon which | the contractors are prepared to contract make an offer which can be accepted or rejected. |
| Havela Investments Ltd. v Royal Trust Co. of Canada and Outerbridge | A distinction was drawn between a sale by auction and a sale by fixed bidding which justified the exclusion of referential bids because only in auctions can a person bid with reference to the bid of another. |
| Howberry Lane Ltd v. Telecom Éireann rejected the reasoning adopted in Harvela that it was an implied term that ref bids | were excluded. ref bids were accepted here. The tendering documents contained an express term that the seller reserved the right to sell the comp to any person at any time and that it was under no obligation to accept the highest bid, or any bid. |
| Smart Telecom v RTE | The court approved Harvela to the effect that a referential bid can only be made in response to an offer to make tenders where the offer is expressly permitted by the terms of the request for tenders. |
| Generally referential bids are not permitted. | A referential bid is inconsistent with an auction process as this process requires a number and does not work if more than one party attempts to make a referential bid. |
| Blackpool & Fylde Aero Club Ltd. v Blackpool Borough Council | Tenders exceptions: express commitment to consider all bids H: contractual duty to consider - offer was made to consider |
| Acceptance | A final and unequivocal(明白な) expression of agreement to the terms of the offer |
| Acceptance is generally divided into two distinct areas: | Fact of Acceptance - Acceptance must be shown as a matter of fact Communication of Acceptance - Acceptance must be communicated |
| Brodgen v Metropolitan Rlwy Co. | Acceptance can be express or implied by conduct Silence exception: offer can be accepted through Conduct |
| R v Clarke | Acceptance cannot be made in ignorance of an offer Acceptance is not valid if made in ignorance of an offer – there must be a nexus between the acceptance and the offer |
| Williams v Carwardine | Acceptance is valid even if unmotivated by the offer valid acceptance to Unilateral offer may be made by anyone with notice of the offer: Motive Irrelevant |
| Acceptance is distinguishable from Acceptance must be distinguished from a | Counter-offer |
| Counter offer | is not an acceptance + it constitutes a rejection of the original offer |
| When an offer is accepted, it is essential that the offeree accept the exact terms of the offer. If, instead of doing so, the offeree introduces a new term, he is making | a counter-offer, the effect of which is to destroy the original offer. |
| Hyde v Wrench | W was entitled to refuse as the offer of £95 was a rejection of the original offer(W's offer of £100) and H's statement that he would buy the farm for £100 was a fresh offer. W could reject. no contract. Mirror Image Rule: acceptance must be unqualified |
| Another example of a counter-offer is the case of | Wheeler v. Jeffrey |
| If the offeree intends to accept the offer as it stands, and looks for some further information about the offer, he does not make a counter-offer but a request for information which does not destroy the offer. A good example of this is found in | Stevenson v. McLean |
| As a general rule, an enquiry(問い合わせ) will not constitute | a counter-offer |
| Silence may not constitute acceptance: Silence is not Acceptance Felthouse v Bindley | Silence may not constitute acceptance: Silence is not Acceptance |
| Principle comes from | Section 47 of the Sale of Goods and Supply of Services Act 1980 deems inertia-selling unlawful. So does Article 9 of the EU Distance Selling Directive |
| However, conduct can render silence unambiguous, if a person does not expressly state their acceptance but | instead continues to follow the terms of the agreement. |
| In general, the offeree's acceptance of the offer must be communicated to the offeror. However | The postal rule is an exception to the general rule. |
| If the acceptance is posted,acceptance is complete the moment the letter is placed in the post box. The postal rulewas first set out in | Adams v Lindsell Acceptance took place when the letter was posted and came into the possession of the postal service |
| General Rule | acceptance must be brought to the attention(awareness) of the offeror |
| Postal Rule | acceptance is complete upon posting |
| It applies even if the letter never arrives | Household Fire Insurance v Grant This was rationalised on the basis that the post office acts as an ‘agent’, even though they know nothing of the contract. |
| though it will not apply if the letter was not properly stamped or addressed, if it was unreasonable at the time to use the post or if the offeror expressly or impliedly stated that the rule would not operate | Holwell Securities v Hughes, Kelly v Cruise Catering |
| Holwell Securities v Hughes | The original offer clearly stipulated the method by which acceptance was to take place, and this superseded(取って代わる) the postal rule. The PR cannot apply when there are express terms in the offer specifying that acceptance must reach the offeror [the GR] |
| Kelly v Cruise Catering | The acceptance is complete as soon as the letter is put into the post box, and that is the place where the contract is made. |
| Electronic and instant messaging When did the acceptance happen?: | General (receipt) rule apply |
| Entores Ltd v Miles Far East Corp | Telex and fax(instantaneous means of communications) are printed telephone messages and follow the general rule. An acceptance is made when received and read by the offeror |
| The Brimnes | A notice of withdrawal was sent during office hours but not seen by staff negligently. This was deemed effective when it was received.It is right to assume the offer has been accepted when instant communication is made during office hours. |
| Brinkibon v Stahag Stahl und Stahlwarenhandelgesell schaft | Instantanious Communiation - outside office hours They accepted Entores where in the case of instantaneous communication, which included telex, the formation generally occurs in the place where the acceptance is received. |
| Mondial Shipping v Astarte Shipping | Instantanious Communiation - outside office hours - if communication is made by either party outside of office hours it is presumed that the other party is not expected to receive it until they open, e.g. a revocation at 11:50pm on Friday is valid Mon. |
| Ryanair v Billigfluege.de GMBH | Ryanair arguing terms of conditions on its website constituted a contractual agreement. And this agreement highlighted that jurisdiction was to be given to the Irish courts in deciding the matter and not Germany. |
| Thomas v BPE Solicitors (a firm) E-mail | An email sent at 6pm was deemed by the Court to be effective when it arrived in the inbox at 6pm on the grounds that it was then available to be read by the recipient. |
| Web Sites | as internet contracting is instantaneous, the receipt(general) rule should apply. This would appear consistent with the Electronic Commerce Act, 2000 |
| There are a number of ways in which an offer may be terminated so that | it may be rendered no longer capable of being accepted 1.Revocation 2.Rejection (i)it is not acceptance (ii)the offer is termination 3.Lapse of time – terminate 4.Death 5.Failure of a condition |
| 1. Revocation of an offer General Rule: | An offer can be revoked up until acceptance. The General Rule is that an offer can be withdrawn at any time before it is accepted. |
| Notice of the Withdrawal must | be communicated to the Offeree i.e. brought to the offeree’s attention. The Postal Rule does not apply to revocation. |
| Revocation Communication 3rd parties D offered to sell property to P for £800 stating that the offer would be open until Friday 12th. On Thursday, P was informed by a stranger that the property had been sold to a third party. | Dickinson v Dodds Held: the revocation was reasonably communicated to the plaintiff and was valid. |
| Revocation of Unilateral Offers | Remember the unilateral contract is only completed by the performance of the stipulated(明記された) action by the offeror. This ensures symmetry(調和) of treatment i.e. the offeror is not bound to perform. |
| A father bought a house subject to mortgage(担保) and allowed his son and daughter in law to live there if they paid the final instalment. The father died and left thr house to his widow, who sought possession of the house. | Errington v Errington & Woods Held: no tenancy existed, nor was there any contract requiring them to pay the instalments. but the offer by the father became incapable of revocation once they began performance on the basis of the promise[an implied term]. |
| The offer becomes irrevocable once the offeree has started performance according to the terms of the offer. | Daulia v Four Millbank Nominees However this ruling was stated obiter because in this particular case the offeree had completed performance before revocation took place. |
| Revocation must be communicated, the postal rule does not apply to seek to revoke an offer. Revocation becomes effective in respect of post only when it has been received by the offeree. Offer cannot be revoked if part performance has been initiated. | Byrne & Co v Leon van Tienhoven Friel: in order to revoke an offer in a unilateral contract, the revocation should be displayed with the same prominence for the same duration as the original offer. |
| Hyde v Wrench | Rejection of an offer[counter offer] If the offeree rejects the original offer, he cannot later change his mind and accept it. An offer may be rejected by express or implied words or conduct. |
| What do the courts often need to distinguish as to the possibility of altering the terms of the offer? | Between a rejection of an offer[counter offer] and a mere inquiry[requests for information] |
| Lapse(失効) of Time | where no express deadline has been set by the offeror acceptance must take place within a reasonable time, that being judged on a case by case basis. |
| An offer made in June to buy shares could not be accepted in November because of the fluctuating(変動する) share prices. | Ramsgate victoria Hotel v Montefiore |
| Death | Re Whelan Whelan guaranteed a partnership account. He died in April though the bank did not learn of it until November. It continued with the account until December. The Court held that the guarantee determined on the date the bank learned of W's death. |
| Failure of a Condition D was in the process of buying a car on hire purchase from P's financing company. D paid the first instalment. While the car was in the garage, it was stolen and damaged. The finance company then signed the contract. | Financings Ltd v Stimson The Court held that the offer was subject to an implied condition that the car remained in the same condition until acceptance as it was in when it was offered. |
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bellevoile