O&A - Offer

Question 1

What is an offer?

Answer 1

A definite promise to be bound without more.

Question 2

What should acceptance of offer terms result in?

Answer 2

An agreement.

Question 3

What are invitations to treat?

Answer 3

An invitation to others to make offers as part of the negotiation process.

Question 4

How are offers different from invitations to treat? (1)

Answer 4

1. A simple response of ‘yes’ to an invitation to treat will not conclude an agreement.
2. The language used in offers will be more firm
   Authority (2) - Gibson v Manchester City Council

Question 5

What are the comparative definitions of offers and invitations to treat?

Answer 5

Offer - pre-contractual definite promise intended to be binding once accepted.
Invitation to Treat - pre-contractual statement intended to lead to higher levels of negotiation.

Question 6

What are advertisements, brochures and price lists? (1)

Answer 6

Invitations to Treat

Authority - Partridge v Crittenden

Question 7

What are the exceptions to the position that advertisements etc are invitations to treat not offers? (2)

Answer 7

1. In unilateral contracts where a reward for performance is advertised
   Authority - Carlill v Carbolic Smoke Ball
2. Where there is sufficient certainty of terms - a first come first served guarantee for instance
   Authority - Warwickshire County Council Case

Question 8

What are shop displays, shop windows or supermarket shelves? (2)

Answer 8

Invitations to Treat
Authority - Fisher v Bell (display)
Authority - Boots Case (shelves)

Question 9

What are requests for tenders or bids? (1)

Answer 9

Invitations to Treat

Authority - Spencer v Harding

Question 10

What are the exceptions to the position that requests for tenders or bids are invitations to treat not offers? (2)

Answer 10

1. Where there is an express undertaking to accept the lowest/highest offer
   Authority - Harvela Case
2. Where there is an express undertaking to accept only those bids that conform to given conditions
   Authority - Blackpool & Fylde Aero Club Ltd v Blackpool Borough Council

Question 11

What are requests for bids or advertisements of auctions? (2)

Answer 11

Invitations to Treat
Authority - Harris v Nickerson
Authority - Warlaw v Harrison

Question 12

What are the legal implications of withdrawn bids or cancelled auctions? (2)

Answer 12

Goods can be withdrawn from auctions or advertised auctions cancelled without liability
Authority - Harris v Nickerson
Bids only constitute offers and thus can be withdrawn at any time prior to the hammer falling or the good being withdrawn from the auction
Auction - Warlaw v Harrison

Question 13

What is the limited stocks argument? (1)

Answer 13

This is the argument that underpins the reasoning behind finding various ads etc to constitute invitations to treat and not offers. It essentially says that the supplier should be in control of the formation of the contract as he knows what he is able to supply, thus he should execute acceptance of offers made to him not vice versa.
Authority - Grainger & Son v Gough

Question 14

Do offers require a subsequent communication indicating an intention to accept? (1)

Answer 14

Generally yes, there needs to be an explicit ‘acceptance’ of an offer, however, in the case of Unilateral Offers mere performance suffices as acceptance.
Authority - Carlill v Carbolic Smoke Ball

Question 15

What communication requirements are there regarding offers?

Answer 15

An offer must be communicated to the eventual offeree/acceptor - one cannot accept an offer they’re unaware of.

Question 16

What is key in instances of mistakenly made offers or mistakenly expressed ones?

Answer 16

Knowledge - say an offer is made to sell a car for £1 instead of £1000 the central issue for debate is whether there was knowledge of the mistake made.

Question 17

What happens where there is knowledge on the part of the offeree of the mistake in the offer? (1)

Answer 17

The ‘contract’ (if there ever was one) can be made void

Authority - Hartog v Colin and Shiels

Question 18

What happens where there is no knowledge on the part of the offeree of the mistake in the offer? (1)

Answer 18

The contract is accepted as ‘good’ and cannot be made void

Authority - Merchant Investors Ass Co Ltd

Question 19

What is the importance of the reasonable man in resolving uncertainty regarding offers made or expressed by mistake? (2)

Answer 19

Where there is no ‘consensus ad idem’ (meeting of the minds) and the the reasonable man cannot determine the correct interpretation of an offer there will be no agreement or contract
Authority - Scriven Brothers & Co v Hindley (insufficiently clear)
Authority - Tamplin v James (sufficiently clear)

Question 20

What are the five ways in which offers can be terminated?

Answer 20

1. Lapse of Time
2. Revocation
3. Counter-Offers
4. Failure of a Condition subject to which the offer was made
5. Death

Question 21

How may a lapse of time lead to an offer being terminated? (1)

Answer 21

Where a specific time frame is required or prescribed for acceptance the offer can be withdrawn anytime prior to acceptance
Authority - Routledge v Grant

Question 22

What is the exception to the position regarding the withdrawal of offers under lapse of time? (1)

Answer 22

1. Lock-out agreements - where there is a promise to lock out a withdrawal of an offer it cannot be later withdrawn anytime prior to acceptance
   Authority - Pitt v PHA Asset Management
2. Where the offeree has exchanged something for the promise that the offer will be kept open for a certain period of time - provided ‘good consideration’

Question 23

How may revocation lead to an offer being terminated? (2)

Answer 23

Unilateral offers can be revoked anytime before performance begins
Authority - Errington v Errington and Woods
Non-Unilateral offers can be revoked anytime before acceptance
Authority - Offord v Davies

Question 24

What exception is there to the position that revocation of unilateral offers can occur anytime prior to performance? (1)

Answer 24

The terms of a unilateral offer may deliberately enable revocation even after performance has begun
Authority - Luxfor Ltd v Cooper

Question 25

How can effective revocation of unilateral offers be completed? (1)

Answer 25

The revocation must be by the same/similar/no less effective or efficient means than the original offer for it to be effective
Authority (persuasive) - Shuey v US

Question 26

Does the revocation of a unilateral offer have to be actually seen by the offeree(s)?

Answer 26

No, whether it is actually seen or not is irrelevant - it just has to be communicated in the correct way.

Question 27

How can effective revocation of non-unilateral contracts be completed? (1)

Answer 27

The revocation is effective only upon actual communication - thus acceptances sent before the receipt of posted revocations may still from contracts
Authority - Byrne v Tienhoven

Question 28

Can revocation (non-unilateral) be communicated by a third party? (1)

Answer 28

Yes

Authority - Dickinson v Dodds

Question 29

How may counter-offers lead to the termination of offers? (1)

Answer 29

If, when purporting to accept, the offeree alters the terms contained in the offer or adds a new term, this will constitute a counter-offer
Authority - Hyde v Wrench

Question 30

What effect does a counter-offer have on the existence of the previous one?

Answer 30

Offer can only be accepted prior to a counter-offer being made, this counter-offer serves to;

1. Destroy the previous offer
2. Give rise to the potential creation of a new offer

Question 31

How may the failure of a condition subject to which the offer was made lead to the termination of an offer? (1)

Answer 31

The failure of a condition subject to which the offer was made will prevent a contract being formed involving said offer
Authority - Financing Ltd v Stimson

Question 32

How may death lead to the termination of an offer?

Answer 32

‘If a man who makes an offer dies, the offer cannot be accepted after he is dead’ - Mellish LJ