TEAM NO.

:1R

BBALLB (III Sem) 2018-19

BEFORE THE HON’BLE COURT OF __________

SATISH (PETITIONER)
V.
ROHAN (DEFENDANT)

ON SUBMISSION TO THE REGISTRY

OF THE HON’OBLE COURT

MEMORIAL FOR THE DEFENDANT - ROHAN

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 TABLE OF CONTENTS

INDEX OF AUTHORITEIS…………………………………………………..iii

STATEMENT OF JURISDICTION…………………………………………iv

STATEMENT OF FACTS…………………………………………………….v

STATEMENT OF ISSUES…………………………………………………….viii

SUMMARY OF ARGUMENTS……………………………………………….ix

ARGUMENT ADVANCED……………………………………………………..x

PRAYER…..……………………………………………………………………xvi

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 INDEX OF AUTHORITES
S. No. CASES Page
No.

1 Pharmaceutical society of Great Britain v. Boots cash chemists Xi

(Southern) Ltd. [1953] EWCA Civ 6

2 Hadey V Wrench [1840] 49 ER 132 Xi

3 Harvey v. Facey [1893] AC552 Xii
i
4 Mac pherson v. Appanna AIR 184, 1951 SCR 161 Xii
i
5 Spencer v Harding [1869] Xiv

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 STATEMENT OF JURISDICTION

THE HON‟BLE COURT EXERCISES JURISDICTION TO HEAR AND ADJUDICATE OVER THE MATTER.

THE RESPONDENTS HUMBLY SUBMITS TO JURISDICTION OF THE HON‟BLE COURT WHICH HAS BEEN
INVOKED BY THE PETITIONER. HOWEVER, THE RESPONDENT RESERVES THE RIGHT TO CHALLENGE THE
SAME.

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 STATEMENT OF FACTS

1. Mr. Rohan was the proprietor of a showroom of Footwear’s in Agra. On February 28th, 2018
He put an advertisement in a National Daily for sale of his Honda Amaze 2014 Model for
4.5 Lakhs.

2. Mr. Satish, an Advocate practicing in Delhi High Court approached Rohan on Call on 15th
March to have look at the condition of the car and to have a Test Drive of the Car.

3. After so many follow ups from Mr. Rohan and after delaying for around 15 days He agreed
to Satish’s request through a letter and asked Mr. Satish to come to Agra on 7th April for the
same.

4. On 7th April Satish visited Rohan and liked the Car but asked for some time.

5. Satish sent a letter for negotiating at 2 Lakhs on 20th April.

6. Rohan replied on 28th April and asked that he would not sell his Car for less than 3.5 Lakhs
and seeks a reply from him within 2 weeks.

7. In the meantime Rohan got an offer of purchase of his car for Rs 2.5 Lakhs from Mrs. Dua.

8. Satish posted a letter for acceptance of offer for amount 3.5 Lakhs to Mr. Rohan by speed
post at 9 PM on 12th May.

9. Rohan waited till 12th May and on the same day sold the Car at 8PM to Mrs. Dua.

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10. On 13th May Morning at 9 AM he tried Calling Mr. Satish but couldn’t contact and therefore,
sent a message of revocation and selling of Car to someone else at 11AM.

11. Mr. Rohan received letter of Mr. Satish for acceptance on 14th May at 5 PM.

12. On Seeing Text message on 17th May Mr. Satish filed the Case against Mr. Rohan for Breach
of Contract.

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 STATEMENT OF ISSUES

 Whether there is an offer between Rohan (Defendant) and Satish (Plaintiff)?

 Whether the communication of acceptance and revocation is valid or not

 Whether there is a breach of contract?

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 SUMMARY OF THE ARGUMENTS

I. THERE WAS NOT A VALID CONTRACT.

Contract does not come into existence .As there was no acceptance to the offer made by
the plaintiff.
II. THE LETTER OF NEGOTIATION DATED 20TH APRIL AMOUNTS TO A
COUNTER OFFER AND REVOKES THE ORIGINAL OFFER DATED
28THFEBRUARY BETWEEN ROHAN (DEFENDANT) & SATISH (PLAINTIFF).

Yes, the letter of negotiation amounts of counter offer and revokes original offer.

III. THE LETTER DATED 28TH APRIL BY ROHAN (DEFENDANT) AMOUNTS TO

A FRESH OFFER.
The letter dated 28 April, does not amount to the offer instead it was an invitation to offer
made by Mr. Rohan.
IV. IS THE ACCEPTANCE NOT COMPUTED?

No, the acceptance is not computed because defendant never made a proposal but rather made an
invitation to treat in the way of advertisement. According to section 2(a), there is a difference
between an offer and invitation to offer. According to section 2(b), an important ingredient of the
acceptance is assent to proposal, since there never was a proposal made to the plaintiff, therefore
acceptance never computed. According to section 4, there was no communication of acceptance
of proposal because the plaintiff was the proposer and defendant never made the acceptance to
plaintiff.

V. SELLING OF CAR TO MRS. DUA AMOUNTS TO AN AUTOMATIC

REVOCATION OF THE OFFER BETWEEN ROHAN (DEFENDANT) AND
SATISH (PLAINTIFF).
This revocation does not have any legal existence because the contract never come into
existence as the acceptance was not completed on the part of Mr. Rohan. So there is no
question of revocation.

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 ARGUMENTS ADVANCED

1. THERE WAS NOT A VALID CONTRACT.

No there was no contract between Rohan and Satish to make a contract there must be
acceptance which is absolute and unqualified. In commercial transaction, particularly
complex ones, contracts are often concluded after prolonged negotiations in which
sequence of offer and acceptance cannot be identified. To determine whether there was a
contract or not the entire negotiation and correspondence should be considered.
According to section 2(a) of Indian contract act “when one person signifies to another his
willingness to do or to abstain from doing anything, with a view to obtaining the assent of
that offer to such act or abstinence, he is said to make a proposal.”
The definition emphasis on the intention to enter into a legally bounding contract and
upon the consideration. This statement means promisor makes the final willingness by his
offer, now the contract will be binding offer assent of the promisee.
Offer, it is an intimation, by words or conduct of a willingness to enter in to a legally
binding contract and which in its terms indicates that it is to become binding on the
offeror as soon as it has been accepted by an act. Written promise on the part of the
person to whom it addressed. But, this advertisement to sell a car is not an offer/proposal
it is an invitation to offer/treat. As an offer is a final willingness by the offeror to be
bound by his offer, whereas a party without expressing his final willingness proposes
certain term on which he is willing to negotiate, he does not make an offer but only
invites the other party to make an offer on those terms. In this, the party who invite the
other person to offer will not be bound, no sooner the offree signifies his assent to it. It
must require nothing more to convert it into promise except acceptance. Advertisement
neither quotation of prices, nor a letter asking for quotation or terms are offers, they are
invitation to offer. Where orders are invited, a contract into being only when the offeree
places the order and invites for the same. So, the advertisement given by Mr. Rohan was
merely an invitation to treat and when Mr. Satish posted letter on 20th April was a
negotiation of the offer in Rs. 2 lakhs but when Mr. Rohan posted a letter in which it is
written not less than Rs. 3.5lakhs he will sell his car dated 28th April. So, that is a refusal
to the term or negotiation made by Mr. Satish. So, he will not get bound for the contract.

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 Pharmaceutical society of Great Britain v. Boots cash chemists (Southern) Ltd.
[1953] EWCA Civ 6 It was held that if an intending buyer was willing to purchase the
goods at a price mentioned on the tags , he could make an offer to buy the goods . The
shopkeeper had the option to accept the offer or reject the same. The contract would arise
only when the offer was accepted. No customer can force the shopkeeper to sell the
goods at the price mentioned on the tag. In the instant case, the defendants were having
the business of retail sale of drugs. Medicines were displayed on the shelves and their
retail prices were also indicated. They had self-service system. On entry into the shop a
customer was given a wire basket. After selecting the articles needed by a customer he
could put them in the basket and take them to cash desk. The defendants had put a
registered pharmacist near the cash counter, who had been authorized to shop any
customer removing any drug from the premises.

2. THE LETTER OF NEGOTIATION DATED 20TH APRIL AMOUNTS TO A

COUNTER OFFER AND REVOKES THE ORIGINAL OFFER DATED
28THFEBRUARY BETWEEN ROHAN (DEFENDANT) & SATISH (PLAINTIFF).

Yes, the letter of negotiation amounts to counter offer and revokes the original offer. Satish
sent a letter of negotiation stating a new and counter offer of Rs. 2 lakhs which revokes the
amount so stated in the advertisement by Rohan on 28th February, 2018.

Hadey V Wrench [1840] 49 ER 132 is the leading case which defines the counter offer.

Wrench (D) offered to sell his estate to Hyde for 1200 pounds and Hyde (P) declined.
Wrench then made a final offer to sell the farm for 1000 pounds. Hyde in turn offered to
purchase the property for 950 pounds and Wrench replied that he would consider the offer
and give an answer within approximately two weeks.

Wrench ultimately rejected the offer and the plaintiff immediately replied that he accepted
Wrench’s earlier offer to sell the real estate for 1000 pounds. Wrench refused and Hyde sued
for breach of contract and sought specific performance, contending that Wench’s offer had

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not been withdrawn prior to acceptance. It held there was no argument-the earlier offer to sell
was terminated by the counter offer and it could not be revived.

And in our case also the same situation applies because Satish proposed a new offer against
the invitation to offer which was so advertised, therefore the new offer revokes the original
one.

It held there was no argument-the earlier offer to sell was terminated by the counter offer and
it could not be revived

III. THE LETTER DATED 28, APRIL BY ROHAN AMOUNTS TO FRESH OFFER.

Yes, there was a new invitation to offer. As, Mr. Rohan refuse the offer of rs. 2 lakhs made
by Mr. Satish on 20 April by saying he will not sell the car not less than 3.5 lakhs and for the
same he invites Mr. Satish for further negotiations so this leads to a new invitation to offer
which is to replied within 2 weeks i.e. 12 may.

So, this clear that there was no final price or final willingness is show by the defendant it was
mere an invitation to offer, where plaintiff would come to negotiate and made a further offer
which the defendant would refuse or accept. By, this Mr. Rohan did not get bind for any
contract.

Letter dated 28 april said two things one "he will not sell the car not less than 3.5 lakhs "
which amounts to refusal of the offer made by plaintiff on 20 April to buy a car for rs. 2 lakh
and also it amounts to an new invitation to offer , and invites plaintiff for further negotiations
, there is no final willingness as amount so not exactly provided so, Mr. Rohan is not bound
to perform any condition of Mr. Satish

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 Harvey v. Facey [1893] AC552

The defendant in this case were the owners of a plot of land known as bumper hall pen. The
plaintiff being interested in purchasing the same sent a telegram to the defendant will you sell
us bumper hall pen? Telegraph lowest cash price for bumper hall pen is dollar 900 the
plaintiff sent another telegram to the defendant saying "we agree to buy bumper hall pen
dollar 900 asked by you. Please send us title deeds" the defendant refused to sell the land. In
a suit the plaintiff contended that the second telegram from defendant quoting lowest price
was an offer and the same had been adopted by plaintiff and contract was complete. The
defendant on the other hand contended that quoting the price was not an offer which could be
accepted

In reply only lowest was quoted and this quoting of price was not an offer. The third telegram
from the plaintiff saying "we agree to buy” was only an offer and not the acceptance of an
offer.

The case of Mac pherson v. Appanna AIR 184, 1951 SCR 161 is another illustration of an
invitation to treat. the plaintiff having already offered to pay Rs.6000 to the defendant for this
property , again wrote to the defendant’s agent asking whether his offer had been accepted
and also stating that he was willing to pay even higher price if found reasonable. The
defendant’s agent replied that the defendant would not accept less than rs 10000. The
plaintiff then wrote that he was willing to pay Rs.10,000 . The plaintiff contended that the
offer of Rs.10,000 has been accepted by him (the plaintiff) and sued for specific performance
of the contract . it was held that in this case the letter from the defendant’s agent was not a
counter offer amounting to invitation to offer . The plaintiff's willingness to pay Rs.10,000
was an offer and since the same had not yet been accepted , there was no binding contract
between the parties.

IV. THE ACCEPTANCE IS NOT COMPUTED.

No the acceptance is not computed because defendant never made a proposal but rather made an
invitation to treat in the way of advertisement. According to section 2(a), there is a difference
between an offer and invitation to offer and in the case of Mac Pherson v Appanna.

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According to section 2(b), an important ingredient of the acceptance is assent to proposal, since
there never was a proposal made to the plaintiff, therefore acceptance never computed on the part
of defendant.

In mac person v appanna also the plaintiff offered to pay rs. 6000 to defendant for his property
and in the reply to this offer defendant said that he would not accept less than rs. 10,000, and
same happened in the present case where the defendant only gave an invitation to offer for not
less than Rs. 3.5lakhs which is to negotiate upon.

According to Section 4 there was no communication of acceptance of proposal because the

plaintiff was the proposer and defendant never made the acceptance to plaintiff.

Spencer v Harding [1869]

Harding issued a call for tenders, with a 7 day submission window. Harding accepted a
tender on the first day of the window. Spencer submitted a better tender within the
window but after a ‘winning’ tender had been accepted on the first day. Was a call for
tenders capable of being a contractual offer to sell to the highest bidder? No offer, simply
an invitation to treat. A call for tenders is an invitation to treat, and is not a contractual
offer. The defendant did not need to sell to the highest bidder, other factors may have
been involved.

V. SELLING OF CAR TO MRS. DUA AMOUNTS TO AN AUTOMATIC

REVOCATION OF THE OFFER BETWEEN ROHAN (DEFENDANT) AND
SATISH (PLAINTIFF).
This revocation does not have any legal existence because the contract never come into
existence as the acceptance was not completed on the part of Mr. Rohan. So there is no
question of revocation because Rohan never made a proposal but rather made an
invitation to offer. After Satish, contacted Rohan, there were only talks of negotiation,
Rohan didn’t made an offer but rather stated another condition to be negotiated upon.
Sale to Mrs. Dua was a valid sale and that sale automatically revokes the invitation to
offer because the core element of the invitation to offer is now off the table. It was in

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good faith and due diligence of Rohan that he sent a revocation letter just to inform him
that the car is already sold because he never made an offer to him in the given time.

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 PRAYER

In the light of the facts stated arguments advanced and authorities cited the defendant humbly
prayers before the honorable court to graciously pleased

 We are not responsible to pay the compensation for substantial losses the contract does
not exist and also we are not responsible for communication and roaming expenses.

(Counsel for defendant)

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