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Contract Essay Term 1 (61)

Contract Essay Term 1 (61)

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Published by Adam 'Fez' Ferris
Fez's first term essay on acceptance, postal rule and acceptance by electronic communication. Think it got 61
Fez's first term essay on acceptance, postal rule and acceptance by electronic communication. Think it got 61

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Published by: Adam 'Fez' Ferris on Mar 30, 2010
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03/08/2014

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Contract I: Term 1 Written Work
Student: Adam FerrisTutor: I-San TiawTutorial Group: NThe first issue that needs to be discussed is whether or not Gertie’s advert in the magazineconstitutes a unilateral offer or an invitation to treat/negotiate. The answer to this is integralin deciding whether or not Gertie has formed a binding contract with either Maurice or Fred.Whilst there is precedent stating that advertisements in newspapers are usually invitations totreat, there are certainly exceptions. In
 Partridge v. Crittenden - [1968] 2 All ER 421
Ashworth J states that an advert placed in a section of a media item under such a heading as‘Classified adverts’ is simply an offer to treat. However, I contend that Gertie’s notice isfundamentally different from this case, in that Gertie’s notice is an advertisement to purchasea chattel, whereas In
 Partridge
the item is for sale. There is no mention in any of the judgments of how to classify an advertisement to purchase. Furthermore, Gertie’s notice isfar more specific and detailed the advert in
 Partridge
. Her notice includes details of when payment will be made and specific methods of contact are given, whereas the advert in
 Partridge
 provides neither of these. Although not binding, the judgment of Murphy J in
 Lefkowitz v. Greater Minneapolis Surplus Stores Inc, 86 NW2d 689 [1957]
states that if suchadvertisements are clear and explicit, with no room for negotiation, then this constitutes anoffer. This judgment also cites
 Johnson v. Capital City Ford Co,
a case involvingadvertisements for both purchase and sale. In this case it was decided that a specific advertfor the purchase of a chattel can be considered as an offer. Gertie’s advert is certainly specificas it gives the exact item that is needed, even including the detail that it must be a ‘woodnymph design’. There is no room for negotiation as Gertie also clearly states a price.Although there are no binding cases that set a clear precedent for whether such an advert to buy constitutes an offer to sale or an invitation to treat, I would advise Gertie that there is persuasive evidence that may lead to the notice being construed as an offer. It is accepted thatthere are exceptions to the precedent set forth by
 Partridge
as the scope of this judgment was
 
narrow and did not attempt to deal with the wider issue of such advertisements as a whole. Iwould advise Gertie that her notice in Mung Monthly may be considered specific enough to be an offer.In order to accept a unilateral contract it is not necessary to communicate theacceptance to the offeror, merely to fulfil the performance required in the offer. In this casethat is to procure a ‘Mung monthly authenticity certificate’ and present it to Gertie.
Carlill v.Carbolic Smoke Ball Co [1893] 1 QB 256 
demonstrates this principle. The court decides thatCarbolic Smoke Ball Co have waived their right to be notified of an acceptance and that bycompleting the performance, Carlill has accepted the offer. Furthermore, the offer may not berevoked once the oferee has started performance, as shown in
 Errington v. Errington [1952]1 KB 290
. Therefore, once either party has started to procure the authenticity certificateGertie may no longer withdraw her offer. Once an authenticity certificate is presented to her this is acceptance by conduct and contributes to form a binding contract. Therefore Gertiemay be bound to buy the vase from the first person who presents her with the certificate. Sheis not obliged to buy more than one vase as her notice quite clearly states that she only wantsone.Maurice made the initial contact with Gertie via phone call. However, Maurice’s phone call was merely a request for information regarding the specific design of the vase. Itdid not constitute an acceptance or a move towards acceptance. In assessing at what pointMaurice’s certificate is considered communicated to Gertie, one must consider whether the postal rule of acceptance applies. Application of the postal rule would mean that Maurice’sacceptance became effective as soon as he had posted the certificate. One of the criteria for the application of the postal rule is that both parties must have considered that the postalservice might be used to communicate an acceptance, as stated in
 Holwell Securities Ltd v. Hughes [1974] 1 WLR 155
. At some point Maurice finds out Gertie’s address as is it notmentioned in the notice. However, I cannot be sure if this was obtained from Gertie or whether or not Gertie advised Maurice to send the certificate by post. Therefore, it isimpossible to tell whether or not Gertie had verbally considered that the postal service.However,
 Henthorn v. Fraser [1892] 2 Ch 27 
stipulates a broader scope for thiscontemplation. In this case the term ‘within contemplation’ is used and it is stated that if it isreasonable to consider the postal service as a reasonable means of response then it is withincontemplation. The ratio in
 Henthorn
also states that the offer does not have to be made via post in order for the postal rule to apply. As Gertie is asking for a document to be delivered to

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