Use LEFT and RIGHT arrow keys to navigate between flashcards;
Use UP and DOWN arrow keys to flip the card;
H to show hint;
A reads text to speech;
28 Cards in this Set
- Front
- Back
- 3rd side (hint)
|
Objective Test of Intention |
consensus ad idem – a meeting of the minds Thetest for intention in contract law is objective. |
|
|
|
Moran v University of Salford (1993) |
Wrote to Mr. Moran offering him a place on one of its courses. Clerical error. Reasonable manreceiving the university’s letter would think that it was an offer of a place. |
|
|
|
Lucy v Zehmer |
FergusonFarm was owned by Zehmer "Ibet you wouldn’t take $50,000 for it”. Lucygave him $5 to seal the bargain Cort: Thereasonable man would interpret Zehmer’s actions as an offer to sell the land. |
|
|
|
Offer |
Anoffer may be defined as a clear and unambiguous statement of the terms uponwhich the offeror is willing to contract, should the person or persons to whomthe offer is directed decide to accept.
Clark |
|
|
|
Gibson v Manchester City Council ([1979] |
Inresponse to his query, Manchester City Council wrote to him stating that “itmay be prepared to sell the house...." Whilethe letter referred to a specific price, the rest was non-commital.-HOL held that there was no validoffer. |
|
|
|
Invitation toTreat |
Aninvitation to treat is merely an offer inviting offers |
|
|
|
Clifton v Palumbo ([1944] |
Negotiating for the sale of a large estate. Seller wroteto the purchaser indicating that he was “prepared to offer you or your nomineemy Lytham estate for £600,000” and that; “reasonable and sufficient time shall be granted to you for theexamination … all the date and details necessary for the preparation of theSchedule of Completion”. Purchaserpurported to accept this offer. COA held that no contract had been formed, since the letter was not adefinite offer to sell, but simply a preliminary indication of price. |
|
|
|
Displayed Goods |
Displayof the goods generally does not constitute an offer to sell, but rather aninvitation to treat. |
|
|
|
Minister for Industry and Commerce v PimBrothers (1966) |
Shopkeeperdisplayed a coat in a shop window, together with a notice indicating thatcredit terms were available. Under statute, it was an offence to offer goodsfor sale on credit terms without those terms being fully set out together withthe offer.The shopkeeper was prosecuted, and the questionpresented was whether, by displaying the coat, he had offered it for sale. Itwas held that he had not. |
Coat
|
|
|
Pharmaceutical Society v Boots Cash Chemists ([1953] |
Self-service store. Prosecuted for sellingpharmaceuticals other than under the supervision of a qualified pharmacist –they were laid out on shelves around the shop for the customer to choose from.This charge presented the issue of when the sale was concluded. Was it when theshopper put the goods into his basket, or when the cashier took payment for thegoods? If it were at the latter time, then no offence was committed, since thetransactions with the cashier were supervised by a pharmacist. Prosecutor argued that the display of goods constituted an offer to sell, which wasaccepted by the shopper taking the goods from the shelf and putting them intothe basket: at this point, it alleged, the contract was complete. The Court ofAppeal rejected this argument: the display of goods, it held, constituted anoffer to treat, and the consumer offered to purchase the goods by bringing themto the cashier. To hold otherwise, the court noted, would mean that the shopcould insist that a shopper pay for goods which he had picked up and thenreturned to the shelf: a result at variance with the commonly accepted practicein self-service shops. |
Self Service
|
|
|
McDermott |
Rulethat the display of goods does not amount to an offer is a rule of convenience. Designedto protect shopkeepers from being obliged to sell goods to anyone who saw themin a shop window. |
|
|
|
Advertisements |
Advertisementscannot be retracted with the same ease as goods can be taken out of shopwindows, and advertisements are likely to reach more people than shop displays. |
|
|
|
Partridge v Crittenden ([1968] |
Thedefendant was prosecuted for unlawfully offering for sale a wild bird, contraryto the English Protection of Birds Act 1954, where he had put an advertisementinto a newspaper stating “Bramblefinch cocks and hens, 25s each”. This was heldnot to be an offer but rather an invitation to treat. |
Cocks and Hens
|
|
|
Guildford v Lockyer ([1975] |
Chineserestaurant and ordered a particular dish. When it arrived, it was a differentdish than he had ordered. He tasted it, didn’t like it and left without paying.He was charged with theft. The Court held that the menu was an invitation totreat, the order by the man was the offer and this would have been accepted byproviding him with the meal that he had ordered but as he received a differentmeal altogether there was no contract in place which would impose on him onobligation to pay. |
Chinese |
|
|
Leonard v PepsiCo (1999) |
The plaintiff,impressed by the advertisement, set out to drink enough Pepsi to purchase aHarrier, failed to do so, he discovered that the promotion rules enabled additionalpoints to be bought for 10 cents each. Managed to raise $700,000, and submitted an order form claiming theHarrier. The defendant replied stating that the ad was merely humorous, and did notconstitute an offer capable of acceptance. Court noted thatthe exception to this is where the offer is clear, definite and explicit andleaves nothing open for negotiation. This exceptionwas not satisfied. The commercialwas not clear enough to constitute an offer as it left the details of the offerto be discovered by way of catalogue.Furthermore, even if the commercial and thecatalogue had included the Harrier Jet, this would still not be clear andexplicit enough for the purposes of an offer in the absence of some words oflimitation, such as “first come, first served |
Harrier |
|
|
UnilateralOffers |
Aunilateral offer is an offer capable of being converted into an agreement bythe act of acceptance. |
|
|
|
Carlill v Carbolic Smoke Ball ([1893] |
To bolster the claim, the company offered in its advertising to pay £100 to any person whocaught influenza having purchased and used the smoke ball. “as a mark of the manufacturer’s sincerity” the sum of£1000 had been deposited with a bank to meet any claims which might be made.The plaintiff purchased a smoke ball, used it,and caught influenza regardless. She sought the payment of £100. The companyresisted this claim on the basis that the advertisement was not intended to bean offer capable of acceptance: it was, they claimed, a mere “puff” which wasnot intended to create a binding contract. This was rejected by the Court ofAppeal, which held that the advertisement did in fact constitute an offer: inparticular, the reference to the sum of £1000 could have no other functionother than to persuade potential buyers that the offer was made seriously andwas intended to be binding if accepted |
Smoke Ball |
|
|
Lefkowitz v Great Minneapolis Surplus Store |
Saturday 9am sharp; 3brand new fur coats, worth $100, “first come first served, $1 each”. Plaintiffwas the first to arrive on each Saturday. The first time he was told that theoffer only applied to women and this was reiterated the second Saturday. The court heldthat this advertisement amounted to an offer and the plaintiff by his actionshas accepted that offer. The offer was sufficiently “clear, definite and explicit” and “left nothingopen for negotiation”. Use of thewords “first come, first served” was crucial, as it gave certainty and finalityto the statement and eliminated any vagueness. |
Fur Coats |
|
|
Auctions |
Theadvertisement of an auction, like any other advertisement, will usually be aninvitation to treat. Bidsby purchasers amount to offers, which are accepted when the auctioneer bringsdown the hammer. |
|
|
|
Harris v Nickerson ([1873] |
Theplaintiff failed to recover damages for loss of time suffered in travelling toan auction which was ultimately cancelled, on the basis that a “meredeclaration of intention” could not be taken to be an offer capable ofacceptance so as to form a binding contract. |
|
|
|
Auctions“without reserve” |
Anauction without reserve is one where the seller has not specified a minimumprice at which the lot must be sold. This may change what would otherwise be aninvitation to treat into an offer to sell to the highest bidder. |
|
|
|
Warlow v Harrison ([1859] |
Horse not being sold to the highest bidder, thecourt decided the following: Because theauction was without reserve, failure to sell to the highest bona fide bidderwas a breach of contract. |
Horse |
|
|
Tenders |
Themere advertisement of a tender constitutes, it is clear, an invitation totreat. When a supplier puts in a bid in response, this constitutes an offercapable of acceptance. |
|
|
|
Spencer v Harding (1870) |
The defendant had invited tenders for the purchase of some of his stock. The highest bidder’s bid was declined, and he sued, claiming that his bid was an acceptance of an offer to sell the stock. The court held that the defendant’s invitationto accept tenders was merely an invitation to treat and the plaintiff’s bid wasthe offer. |
Highest bid |
|
|
Friel |
“tendersare little more than written auctions where people are invited to tender anoffer to undertake some work or purchase some goods.” |
|
|
|
Harvela Investments Ltd v Royal Trust Co ofCanada Ltd [1986] |
Dispose of shares by way of sealed competitive tender. Wrote totwo parties by telex, both of whom were existing substantial shareholders,stating that:“We confirm that if the offer made by you is thehighest offer received by us we bind ourselves to accept such offer providedthat such offer complies with the terms of this telex.”(One of which was thatonly bids of a fixed monetary amount could be made.) The plaintiff bid $2.175m. The second named defendant bid $2.1m or “$100k in excess of any other offer you may receive which is expressed as a fixed monetary amount, whichever is the higher” (a referential bid). The first named defendant accepted the offer of the second named defendant. The House of Lords held that the first named defendant was not entitled to do so. In the first place, the telex constituted an offer to accept the highest bid which was made, such offer being accepted by the submission of a bid. Second, the terms of the resulting contract were such that only bids of a fixed monetary amount could come within its terms. Referential bids such as that made by the second named defendant did not fall within the terms of the contract: accordingly, for the first named defendant to accept such a bid constituted a breach of this contract. |
Referential |
|
|
Howberry Lane v Telecom Eireann [1999] Ireland |
Harvela does not represent the law in Ireland Invited bids for Cablelink.· The plaintiffmade the de facto highest bid, but the third named defendants had made areferential bid of 15% more than the highest bid.The third nameddefendant was awarded the contract after making the highest bid. The plaintiffargued that the referential bid was submitted by the third named defendant wasinvalid and, as a result, the plaintiff’s bid was the highest. The courtrejected the reasoning adopted in Harvelathat it was an implied term that referential bids were excluded. The tendering documents contained an expressterm that the seller reserved the right to sell the company to any person atall, at any time and that it was under no obligation to accept the highest bid,or any bid at all. |
|
|
|
Smart Telecom v RTE [2006] |
Approved Harvela where it is expressly permitted by the terms of therequest. RTE indicated that it was seeking a sponsor for itsbroadcasted weather forecasts. CEO of Smart Telecom made a bid to the effect of “asum equal to 5% above the highest price bid” Terms of RTE’s offer required parties to submittheir best offer clearly outlining the price to be paid. |
|
