1. Is Esme likely to succeed in court if she sues Callan for breach of contract? and,
2. Does Callan have a cause of action against the auctioneer and/or the owner of Marvel comic collection upon which he bid at auction in Sotheby’s?
Esme’s case against Callan
In order to make a case against Callan, Esme must prove that she had concluded a contract with Callan prior to Callan hiring James. A contract between Callan and Esme if it can be established, judged by objective standards, that Callan and Esme had reached some level of consensus. Thus proof of (i) offer and (ii) acceptance between the parties will be essential if Esme is to succeed in any claim against Callan.
Offer
In Contract …show more content…
Such cases must be resolved “by reference to the intention of the parties, by sound business practice and in some cases by a judgement where the risks should lie…” In The Pendrecht a telex purporting to accept the offer was received outside of office hours and was not seen by responsible employee until the following Monday, by which time the acceptance deadline offer was over. Parker J in that case confirmed that acceptance by telex occurred whenever the telex was received. On the facts before him he concluded that it did not matter that the telex was received outside of office hours, when the office was closed, nor did it matter that when it was received nobody looked at …show more content…
The postal rule was developed, as an exception to the ordinary rule, to deal with situations where acceptance through the ordinary postal system is contemplated by the parties. The rule was created by the courts in the case of Adams v Lindsell and formally accepted in this jurisdiction in the case of Kelly v Cruise Catering . Where the postal rule is applicable acceptance becomes effective from the moment of posting, rather than upon receipt. As discussed above the postal rule does not apply to instantaneous communications.
The Electronic Commerce Act 2000 provides at 21(2) that ‘Where the addressee of an electronic communication has designated an information system for the purpose of receiving electronic communications (in this case by sending the offer from his email address), then, unless otherwise agreed between the originator and the addressee or the law otherwise provides, the electronic communication is taken to have been received when it enters that information