Termination offer Hủy hợp đồng

5 OFFER
The first essential element in the formation of a binding contract is agreement.
This is usually evidenced by offer and acceptance. An offer is a definite
promise to be bound on specific terms, and must be distinguished from the mere
supply of information and from an invitation to treat.
Key term:
An offer is a definite promise to be bound on specific terms and may be
defined as follows.
'An express or implied statement of the terms on which the maker is prepared
to be contractually bound if it is accepted unconditionally. The offer may be
made to one person, to a class of persons or to the world at large, and only the
person or one of the persons to whom it is made may accept it.'

A definite offer does not have to be made to a particular person. It may be made
to a class of persons or to the world at large. However, it must be distinguished
from a statement which supplies information, from a statement of intention and
from an invitation to treat.
Carlill v Carbolic Smoke Ball Co 1893
The facts: The manufacturers of a patent medicine published an advertisement
by which they undertook to pay “£100 reward ... to any person who
contracts ... influenza ... after having used the smoke ball three times daily for
two weeks'. The advertisement added that £1,000 had been deposited at a bank
'showing our sincerity in this matter”. The claimant read the advertisement,
purchased the smoke ball and used it as directed. She contracted influenza and
claimed her £100 reward. In their defence the manufacturers argued against
this, saying:
(a) The offer was so vague that it could not form the basis of a contract, as no
time limit was specified.
(b) It was not an offer which could be accepted since it was offered to the
whole world.
Decision: The court disagreed.
(a) The smoke ball must protect the user during the period of use – the offer
was not vague.
(b) Such an offer was possible, as it could be compared to reward cases.
You should note that Carlill is an unusual case in that advertisements are not
usually regarded as offers. A statement which is vague cannot be an offer but an
apparently vague offer can be made certain by reference to previous dealing or
customs.
Gunthing v Lynn 1831
The facts: The offeror offered to pay a further sum for a horse if it was 'lucky'.
Decision: The offer was too vague and no contract could be formed.
5.1 Supply of information
Only an offer in the proper sense may be accepted so as to form a binding
contract. A statement which sets out possible terms of a contract is not an offer
unless this is clearly indicated.
Harvey v Facey 1893
The facts: The claimant telegraphed to the defendant 'Will you sell us Bumper
Hall Pen? Telegraph lowest cash price'. The defendant telegraphed in reply
'Lowest price for Bumper Hall Pen, £900'. The claimant telegraphed to accept
what he regarded as an offer; the defendant made no further reply.
Decision: The defendant's telegram was merely a statement of his minimum
price if a sale were to be agreed. It was not an offer which the claimant could
accept.

If in the course of negotiations for a sale, the vendor states the price at which
they will sell, that statement may be an offer which can be accepted.
Bigg v Boyd Gibbons 1971
The facts: In the course of correspondence the defendant rejected an offer of
£20,000 by the claimant and added 'for a quick sale I would accept £26,000 ...
if you are not interested in this price would you please let me know
immediately'. The claimant accepted this price of £26,000 and the defendant
acknowledged his acceptance.
Decision: In this context the defendant must be treated as making an offer
which the claimant had accepted.
5.2 A statement of intention
Advertising that an event such as an auction will take place is not an offer to sell.
Potential buyers may not sue the auctioneer if the auction does not take place.
This is an example of a statement of intention which is not actionable.
5.3 An invitation to treat
Where a party is initiating negotiations they are said to have made an invitation
to treat. An invitation to treat cannot be accepted to form a binding contract.
Examples of invitations to treat include.
 Auction sales
 Advertisements (for example, price lists or newspaper advertisements)
 Exhibition of goods for sale
 An invitation for tenders
An invitation to treat can be defined as follows.
'An indication that a person is prepared to receive offers with a view to
entering into a binding contract, for example, an advertisement of goods for
sale or a company prospectus inviting offers for shares. It must be
distinguished from an offer which requires only acceptance to conclude the
contract.'
(Note that on the facts of a particular case, advertisements etc may be
construed as an offer: theCarlill case is an example. However, in most exam
questions, advertisements are invitations to treat: read the facts of the question
carefully.)
5.3.1 Auction sales
The bid itself is the offer, which the auctioneer is free to accept or reject. An
auction is defined as a contract for the sale of property under which offers are
made by bidders stating the price at which they are prepared to buy and
acceptance takes place by the fall of the auctioneer's hammer. Where an auction
is stated to be 'without reserve' the auctioneer is offering goods for sale and the
bid is the acceptance. A reserve is a specified minimum price.
5.3.2 Advertisements
An advertisement of goods for sale is usually an attempt to induce offers.
Partridge v Crittenden 1968
The facts:Mr Partridge placed an advertisement for 'Bramblefinch cocks,
bramblefinch hens, 25s each'. The RSPCA brought a prosecution against him
for offering for sale a brambling in contravention of the Protection of Birds
 Act 1954. The justices convicted Partridge and he appealed.
Decision: The conviction was quashed. Although there had been a sale in
contravention of the Act, the prosecution could not rely on the offence of
'offering for sale', as the advertisement only constituted an invitation to treat.
The circulation of a price list is also an invitation to treat.
5.3.3 Exhibition of goods for sale
Displaying goods in a shop window, or on the open shelves of a self-service
shop, or advertising goods for sale, are normally invitations to treat.
Reference to a more detailed document will not necessarily prevent a statement
from being an offer – for example, where a consumer is directed to a booklet of
terms and conditions.
Fisher v Bell 1961
The facts: A shopkeeper was prosecuted for offering for sale an offensive
weapon by exhibiting a flick knife in his shop window.
Decision: The display of an article with a price on it in a shop window is
merely an invitation to treat.

Pharmaceutical Society of Great Britain v Boots Cash Chemists (Southern)

1952
The facts: Certain drugs could only be sold under the supervision of a
registered pharmacist. The claimant claimed this rule had been broken by
Boots who displayed these drugs in a self-service shop. Boots contended that
there was no sale until a customer brought the goods to the cash desk and
offered to buy them. A registered pharmacist was stationed at this point.
Decision: The court found for Boots and commented that if it were true that a
customer accepted an offer to sell by removing goods from the shelf, he could
not then change his mind and put them back as this would constitute breach of
contract.

5.3.4 Invitation for tenders

A tender is an offer to supply specified goods or services at a stated cost or rate,
submitted in response to a prior invitation for tenders by the purchaser. When a
supplier tenders for a contract they are making an offer to the purchaser who has
advertised a contract as being available.
The effect of an invitation to tender depends on the wording used.
 If the invitation states that the purchaser will require the successful supplier to
supply them, usually for a large 'one-off' supply, then acceptance of the tender by
the purchaser will form a binding contract.
 If the invitation states that the purchaser may require the successful supplier
to supply him, then acceptance by the purchaser of the supplier's offer creates a
standing offer.
A standing offer means that the purchaser does not have to buy any goods from
the supplier, but may not purchase goods from another supplier. Any purchase
orders that the purchaser makes are separate acceptances that form separate
contracts, and delivery must be made within the time stated in the standing offer.
Unless there is a binding obligation to keep it open for a certain period of time
the supplier may revoke a standing offer at any time, but must fulfil any orders
placed, since these created contractual obligations.
6 TERMINATION OF OFFER
An offer may only be accepted while it is still open. In the absence of an
acceptance, an offer may be terminated in any of the following ways.
 Rejection
 Revocation by the offeror
 Counter-offer
 Failure of a condition to which the offer was subject
 Lapse of time
 Death of one of the parties
6.1 Rejection
As noted earlier, outright rejection terminates an offer. A counter-offer, when the
person to whom the offer was made proposes new or amended terms, also
terminates the original offer.
Hyde v Wrench 1840
The facts: The defendant offered to sell property to the claimant for £1,000 on
6 June. Two days later, the claimant made a counter-offer of £950 which the
defendant rejected on 27 June. The claimant then informed the defendant on 29
June that he accepted the original offer of £1,000.
Decision: The original offer of £1,000 had been terminated by the counter-
offer of £950.
6.2 Counter-offer
Acceptance must be unqualified agreement to the terms of the offer. A purported
acceptance which introduces any new terms is a counter-offer, which has the
effect of terminating the original offer.
A counter-offer is a final rejection of the original offer. If a counter-offer is
made, the original offeror may accept it, but if they reject it, their original offer
is no longer available for acceptance.
A counter-offer may, of course, be accepted by the original offeror
Butler Machine Tool Co v Ex-cell-O Corp (England) 1979
The facts: The claimant offered to sell tools to the defendant. Their quotation
included details of their standard terms. The defendant 'accepted' the offer,
enclosing their own standard terms. The claimant acknowledged acceptance by
returning a tear-off slip from the order form.
Decision: The defendant's order was really a counter-offer. The claimant had
accepted this by returning the tear-off slip
6.2.1 Request for information
It is possible to respond to an offer by making a request for information. Such a
request may be a request as to whether or not other terms would be acceptable –
it is not a counter-offer.
Stevenson v McLean 1880
The facts: The defendant offered to sell iron at '40s net cash per ton, open till
Monday'. The claimant enquired whether he would agree to delivery spread
over two months. The defendant did not reply and (within the stated time
limit), the claimant accepted the original offer. Meanwhile the defendant had
sold the iron to a third party.
Decision: There was a contract since the claimant had merely enquired as to a
variation of terms.
6.3 Lapse of time
An offer may be expressed to last for a specified time. If, however, there is no
express time limit set, it expires after a reasonable time.
Ramsgate Victoria Hotel Co v Montefiore 1866
The facts: The defendant applied to the company in June for shares and paid a
deposit. At the end of November, the company sent him an acceptance by issue
 of a letter of allotment and requested payment of the balance due. The
defendant contended that his offer had expired and could no longer be
accepted.
Decision: The offer was valid for a reasonable time only and five months was
too long.
6.4 Revocation of an offer
The offeror may revoke their offer at any time before acceptance. If they
undertake that their offer shall remain open for acceptance for a specified time
they may still revoke it within that time, unless by a separate contract they
agreed to keep it open. This is known as an option contract.
Routledge v Grant 1828
The facts: The defendant offered to buy the claimant's house for a fixed sum,
requiring acceptance within six weeks. Within the six weeks specified, he
withdrew his offer.
Decision: The defendant could revoke his offer at any time before acceptance,
even though the time limit had not expired.
Revocation may be an express statement or may be an act of the offeror. The
offeror's revocation does not take effect until the revocation is communicated to
the offeree. This raises two important points. (a) The first point is that posting a
letter of revocation is not a sufficient act of revocation.
Byrne v Van Tienhoven 1880
The facts: The defendants were in Cardiff; the claimants in New York. The
sequence of events was as follows.
1 October Letter posted in Cardiff, offering to sell 1,000 boxes of tinplates.
8 October Letter of revocation of offer posted in Cardiff.
11 October Letter of offer received in New York and telegram of acceptance
sent.
15 October Letter confirming acceptance posted in New York.
20 October Letter of revocation received in New York. The offeree had
meanwhile resold the contract goods.
Decision: The letter of revocation could not take effect until received (20
October); it could not revoke the contract made by the telegram acceptance of
the offer on 11 October.
(b) The second point is that revocation of offer may be communicated by any
third party who is a sufficiently reliable informant.
 Dickinson v Dodds 1876
The facts: The defendant, on 10 June, wrote to the claimant to offer property
for sale at £800, adding 'this offer to be left open until Friday 12 June, 9.00
am.' On 11 June the defendant sold the property to A, another buyer. B, who
had been an intermediary between Dickinson and Dodds, informed Dickinson
that the defendant had sold to someone else. On Friday 12 June, before 9.00
am, the claimant handed to the defendant a formal letter of acceptance.
Decision: The defendant was free to revoke his offer and had done so by sale
to a third party; the claimant could not accept the offer after he had learnt from
a reliable informant of the revocation of the offer to him.
However, this case should be treated with caution and it may be that only an
agent can revoke an offer.
6.5 Failure of a condition
An offer may be conditional in that it is dependent on some event occurring or
there being a change of circumstances. If the condition is not satisfied, the offer
is not capable of acceptance.
Financings Ltd v Stimson 1962
The facts: The defendant wished to purchase a car, and on 16 March signed a
hire-purchase form. The form, issued by the claimants, stated that the
agreement would be binding only upon signature by them. On 20 March the
defendant, not satisfied with the car, returned it. On 24 March the car was
stolen from the premises of the dealer, and was recovered badly damaged. On
25 March the claimants signed the form. They sued the defendant for breach of
contract.
Decision: The defendant was not bound to take the car. His signing of the
agreement was actually an offer to contract with the claimant. There was an
implied condition in this offer that the car would be in a reasonable condition.
6.6 Termination by death
The death of the offeree terminates the offer. The offeror's death terminates the
offer, unless the offeree accepts the offer in ignorance of the death, and the offer
is not of a personal nature.
Bradbury v Morgan 1862
The facts: X offered to guarantee payment by Y in respect of goods to be
supplied by the claimant. X died and the claimant, in ignorance of his death,
continued to supply goods to Y. The claimant then sued X's executors on the
guarantee.
Decision:X's offer was a continuing commercial offer which the claimant had
accepted by supply of goods after X's death. The guarantee stood.