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Definition
C had recently purchased a shop off of a third party
D sent in a written order addressed to former owner of shop (3rd party)
C performed the act (supplied the goods)
C sent D an invoice
D refused to pay, as he had not made a contract with him
Court found that there was no contract, because the offer made by D was not addressed to the C who, therefore, could not accept it |
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Term
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Definition
D made an offer of a reward for information leading to the arrest of two murder suspects
C had seen the offer
C forgot about the offer
C was arrested for the crime and subsequently provided the information requested
Court found that C ‘had not acted on the faith of / in reliance upon the offer (e.g. when C provided the information, he was no longer aware of the offer) |
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Term
| Williams v Carwardine [1833] |
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Definition
A reward was offered for information relating to the identity of a murderer
C was dying and wanted to confess her sins
C provided information on the murderer as requested by the offer
C was aware of the offer, however, her purpose for providing the information was to protect her from eternal damnation – therefore = unconnected motive
Court held that C was entitled to the reward, regardless of her ulterior motive in giving the information – all that was necessary was that she knew of the reward before giving the information |
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Term
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Definition
C had information which would held with the arrest of a 3rd party
C told information to a colleague, with the request that the colleague forward the information on to the officer in charge of the relevant case
Colleague of C passed information on to another colleague, with the same instruction
D posted a offer of a reward, requesting the information C had provided to colleagues
C became aware of the offer of a reward
D received information from C after reward had been posted & after C had become aware of the reward
Court found in favour of C – D’s offer identified as having been accepted when D received the relevant information... at the time at which the offer was accepted, C was aware of the reward. |
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Term
| Butler v Machine tool Co. Ltd v Ex-Cell-O Corporation [1979] |
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Definition
C sent a quotation including C’s T&Cs, which included a price variation clause
D placed an order, using own order form with own T&C’s, which allowed for no price variation clause
D’s order sheet contained a tear-off confirmation slip
C’s provided D’s order and completed tear-off confirmation slip
C’s later attempted to vary the price, however, D’s T&Cs wouldn’t allow that
The court ruled in favour of the D’s
Ratio Decidendi – ‘the sellers had expressly accepted the buyer’s terms when they completed and returned the acknowledgement slip, in other words, the sellers had accepted the buyers’ lat shot’
Lord Denning was involved with this judgement, and he disagreed with the majority decision... see Lord Denning’s three alternative approaches |
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Term
| Lord Denning’s alternative approach... Battle of the forms = 3 options... |
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Definition
Denning considered that a contract was formed at the point where the parties were agree on the material points...
i. If offeree (B) accepts offeror’s (A) terms with own terms attached & original offeror signs and ‘apparently’ accepts...
1. If additional terms make no material difference to the terms of the contract = acceptance of original contract (A’s contract)
2. If additional terms make a material difference & the offeree (B) (who now becomes the offeror) makes original offeror (A) aware of material terms/changes = counter offer accepted (B’s contract)
3. If additional terms make a material difference and offeree (B) does not draw (original) offeror’s (A) attention to them = offeree’s (B) acceptance of the original contract (A’s contract)
ii. If the two terms can be reconciled, all is well & good
iii. If the terms are irreconcilable they should be scrapped & replaced by a reasonable implication |
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Term
| Felthouse v Bindley [1862] |
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Definition
C offered to buy his nephew’s horse
In letter containing off, C wrote – ‘If i don’t hear back from you, I will take that as agreement’
Nephew’s horse was inadvertently sold by D (D is not the nephew, = auctioneer)
Court ruled that there was no contract between C and his Nephew, as Nephew had not communicated acceptance... OFFEROR CANNOT STIPULATE SILENCE AS ACCEPTANCE + GENERALLY, SILENCE CANNOT = ACCEPTANCE |
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Term
| Brogden v Metropolitan Railway Company [1877] |
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Definition
C had provided D with coal for a long time
Parties decided to draw up a contract
D sent C a contract
C signed contract & made an amendment to the contract
D’s received contract, signed it, and filed it away... did not communicate acceptance of C’s amendment
D’s proceeded with performance
Dispute arose and C claimed that there was no binding contract because D’s had not communicated acceptance of his counter-offer
Court held that D’s performance of the act constituted acceptance
COMMUNICATION OF ACCEPTANCE CAN BE DISCRENED FROM CONDUCT – HOWEVER, CONDUCT MUST BE REFERABLE TO THE OFFER AND BE IDENTIFIABLE AS ACCEPTANCE OF THE OFFER TERMS |
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Term
| Intense Investments Ltd v Development Ventures Ltd [2006] |
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Definition
| Further example of acceptance of a bilateral contract being communicated by performance |
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Term
| Tekdata Interconnections Ltd v Amphenol Ltd [2009] |
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Definition
Undermining of Denning’s ‘Battle of the forms approach’
Denning’s approach was used by a first instance judge, and then overturned by a Court of Appeal judge... ‘I think it will always be difficult to displace the traditional analysis in a battle of forms case, unless it can be said there was a clear course of dealing between the parties. That was never proved’ – therefore, last shot prevailed.
Dyson LJ also noted that ‘this approach [last shot] has the great merit of providing a degree of certainty which is both desirable and necessary in order to promote effective commercial relationships
Further criticism = Dennign = too time consuming |
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Term
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Definition
C applied to D’s for the post of headmaster
D’s discussed and agreed to appoint C as headmaster
One of the Ds, without authorisation, told C that he had been selected
The D’s then changed their mind and appointed someone else
Court ruled in favour of D’s, as the D who informed C was acting without authorisation, it did not count as communication of acceptance therefore, = no contract between C and Ds |
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Term
| Manchester Diocesan Council for Education v Commercial and General Investments [1970] |
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Definition
C made an invitation for tenders, and stated that ‘the person whose tender is accepted shall... be informed of the acceptance of his tender by letter sent to him by post addressed to the address given in the tender’
D offered a tender
C accepted D’s tender, and on the 15th September, sent acceptance letter to a different address than the one that was on D’s tender (sent it to D’s surveyor instead)
On the 7th January, C sent another to D’s correct address (the one on the tender) giving formal notice that the tender had been accepted
D’s argued that by the 7th January, the time had lapsed on the offer, and as previous letter was sent to wrong address, it did not count as agreement
The court ruled in favour of C
Ratio decidendi - ‘if an offeror (or in this case the offeree)intends that he shall be bound only if his offer is accepted in some particular manner, it must be for him to make this clear’ – C had not done so, (although he said offeror ‘will be informed by these means’, he did not express that he (himself) would only be bound by an acceptance sent in this manner’ therefore, his letter to the surveyors was acceptable acceptance. (NOTE: D MUST HAVE BEEN AWARE OF THE FIRST LETTER & WAS THUS JUST PLAYING GAMES)
Furthermore, the manner prescribed by the C (offeree) was for his own benefit, not for any benefit to the D(offeror), therefore, D didn’t lose out by having communication through a different means |
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Term
| Yates Building Co. V Pulleyn & Sons [1975] |
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Definition
Offer stipulated that the acceptance should be sent by registered or recorded post
This was intended to enable the offeree to prove that the acceptance had been posted
It was deemed that the offeree could waive this requirement and take the risk of ordinary post
IF ONE PARTY STIPULATES A METHOD OF COMMUNICATION TO BE USED, WHICH IS DEEMED TO BE FOR THE SOLE BENEFIT OF THE OTHER PARTY, THE OTHER PARTY CAN WAIVE THIS OBLIGATION |
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Term
| RE Selectmove Ltd [1995] – Obiter dictum |
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Definition
C had been in negotiations with Inland Revenue over tax arrears
C made an offer to the tax collector that he would pay future amounts as they became due, and any arrears by monthly instalments
Tax inspector said he would have to seek approval for this proposal, and would inform the C if there was any problem with the offer
No further communication with them
Court ruled against the D (tax collector), as the tax collector did not have the authority to make such an arrangement. HOWEVER...
Obiter dictum – If the tax collector had had the authority to make the contract, the ruling may have been different – ‘where the offeree himself indicates that an offer is to be taken as accepted if he does not indicate to the contrary by an ascertainable time, he is undertaking to speak if he does not want an agreement to be concluded. I see no reason in principle why that should not be an exceptional circumstance such that the offer can be accepted by silence’ |
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Term
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Definition
A telex of acceptance is sent during office hours but is simply not read by anyone in the offeror’s office
Acceptance is effective from point of Telex’s receipt
CONDUCT OF OFFEROR AFFECTS THE PRINCIPLE THAT ACCEPTANCE IS EFFECTIVE FROM WHEN IT IS COMMUNICATED TO OFFEROR |
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Term
Entores v Miles Far East [1955]
OBITER DICTUM + other other issue |
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Definition
O Ruling = Postal rule does not apply to instantaneous means of communication, as offeree will most probably (see below) know that acceptance has been sent. Therefore, acceptance is on communication (bar exceptions, see below) + contract is formed in the place/country where acceptance is communicated (e.g. wherever the offeree receives the communication)
O ISSUE 2 – OBITER DICTUM - Ink in teleprinter runs out, but clerk does not ask for the document to be re-sent
O Acceptance is effective – the offeror is deemed to have received the communication in question |
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Term
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Definition
D’s wrote to the C’s offering to sell them wool
C’s posted back acceptance on the evening they received the letter
By the time the D’s received the acceptance, the D’s had already sold the wool to someone else (as it had taken so long for the C’s acceptance to arrive)
Court held that the date the C’s posted the acceptance was the date the contract was made
Ratio decidendi – ‘if a posted acceptance needs to be received before it is effective, how would the offeree know when their acceptance had been received? It would then be necessary for the offeror to confirm receipt of the acceptance, and there would be the risk that confirmations would continue ad infinitum |
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Term
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Definition
| Further example of the postal rule in action |
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Term
Household Fire and Carriage Accident Insurance Co. V Grant [1879]
+ OBITER DICTUM |
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Definition
D applied for shares from the C’s company to be allotted to him (offer)
C’s wrote to D to accept offer & allocated shares to him
C’s acceptance never reached D
C’s company went in to liquidation, and official liquidator applied to D for the sum owing on the shares
D claimed that because he had not received the acceptance of his offer, there was no contract
Court ruled in favour of C
EVEN IF A LETTER NEVER ARRIVES, CONTRACT = FORMED AS SOON AS ACCEPTANCE IS POSTED
Obiter Dictum – ‘postal rule could be avoided by including a clear & explicit clause stating something to the effect of your answer by post is only to bind me if it reaches me’ |
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Term
| RE London and Northern Bank, ex p. Jones [1900] |
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Definition
A letter is not properly posted if it is not put into the hands of someone who is authorised to receive letters
(postmen are not authorised to receive letters, only authorised to deliver letters) |
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Term
| Quenerduaine v Cole [1883] |
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Definition
C made an offer to D and sent it by post
D made a counter offer to C and sent it by telegraph
C sent an acceptance of D’s counter-offer to D by post
By the time D received the acceptance, D no longer wished to enter into the contract as offer had lapsed
Court ruled in favour of D
Ratio Decidendi – ‘the fact that the counter-offer was made by telegraph indicated an implied condition that prompt acceptance was required’ – Post was not deemed an acceptable means of response by C |
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Term
| Obiter dictum – Bramwell LJ – Household Fire Insurance v Grant |
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Definition
| If offeror wanted to avoid the postal rule, they could include a clause which stated that acceptance is only effective upon communication NOT posting |
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Term
Holwell Securities v Hughes [1974]
2 x mildly unrelated issues |
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Definition
O Example of offeror inserting a clause which exempted him from postal rule ‘by notice in writing’
O OBITER DICTUM - Postal rule would not be applied where it would lead to a manifest inconvenience and absurdity (NO EXAMPLE OF THIS IN PRACTICE) |
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Term
| Thomson v James [1855] (Scottish) |
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Definition
| Overrode Dunmore ruling that acceptance can be revoked after it has been posted |
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Term
| Dunmore v Alexander [1830] (Scottish) |
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Definition
| Revocation of acceptance after acceptance is posted is possible, provided that revocation is received before or at the same time as acceptance |
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Term
| Wenkheim v Arndt [1861] (New Zeland) |
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Definition
| No scope for revocation of an acceptance after it has been posted |
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