Distinguish between an offer and an invitation to treat giving examples to

illustrate the distinction

Author: Jonathan Kush

ABSTRACT

The distinction between and offer and invitation to treat can be hard to draw. This is because it will
depend on the elusive criterion of intention. But it can be challenging to differentiate between the
two in some cases, there are certain stereotyped situations that demarcate the distinction clearly
based on the rules of law. Using case law examples, this free sample essay distinguishes the
difference between an offer and an invitation to treat. With not less than five(5) cases, the essay
explains what you understand by invitation to make offer and invitation to treat.

BUSINESS LAW CASE STUDY

Key Learning Outcomes

By the end of the case, students should be able to:

Understand what an offer is and how it differs from an invitation to treat
Use case law examples to argue the differences between the two
Make own conclusions based on case study example

DISTINGUISH BETWEEN AN OFFER AND AN INVITATION TO TREAT.

GIVE EXAMPLES TO ILLUSTRATE THE DISTINCTION

The Distinction Between An Offer And An Invitation To Treat Is Often Hard To Draw As It
Depends On The Elusive Criterion Of Intention. But There Are Certain Stereotyped Situations That
the Distinction Is Determined by Rules of Law.

Introduction

An offer is made when a person shows a willingness to enter into a legally binding contract. An

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invitation to treat (I.T.T) is merely a supply of information to tempt a person into making an offer.
However the distinction between the two can often be misleading and ultimately misinterpreted.
When misinterpretations and complications occur then it is down to the courts to decide and to
distinguish between the two terms, so a person is not led into a binding contract of which he does
not want to be a part of but is merely supplying information to which an offer is to be made (See
Harvey V Facey [1893] A.C 552).
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Harvey V Facey [1893] A.C 552

In this case, Facey (D) was in negotiations with the Mayor and Council of Kingston regarding the
sale of his store. Harvey (P) sent Facey a telegram stating: “Will you sell us Bumper Hall Pen?
Telegraph lowest cash price-answer paid.” On the same day, Facey sent Harvey a reply by
telegram stating: “Lowest price for Bumper Hall Pen £900.” Harvey sent Facey another telegram
agreeing to purchase the property at the asking price. D refused to sell and P sued for specific
performance and an injunction to prevent Kingston from taking the property. The trial court
dismissed on the grounds that an enforceable contract had not been formed and P appealed. The
Supreme Court of Jamaica reversed and D appealed.

Issue: Is a statement of the minimum price at which a seller would sell an offer?

Holding and Rule: No. A mere statement of the minimum selling price is an invitation to treat and
not an offer to sell. The court held that by replying to P’s question regarding the lowest price of the
property, D did not make an affirmative answer to the first question regarding his willingness to
sell. The court held that D had made an invitation to trade and not an offer.

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An invitation to treat is an action inviting other parties to make an offer to form a contract. These
actions may sometimes appear to be offers themselves, and the difference can sometimes be
difficult to determine.

The distinction is important because accepting an offer creates a binding contract while "accepting"
an invitation to treat is actually making an offer.
Advertisements are usually invitations to treat, which allows sellers to refuse to sell products at
prices mistakenly marked. Advertisements can also be considered offers in some specific cases.
Auctions are sometimes invitations to treat which allows the seller to accept bids and choose which
to accept. However, if the seller states that there is no reserve price or the reserve price has been
met, the auction will be considered an offer accepted by the highest bidder.

The main cases relevant to offers and invitations to treat

Carlill v Carbolic Smoke Ball Co [1893] 1 QB 256

Fisher v Bell [1961] 1 QB 394
Pharmaceutical Society of Great Britain v Boots Cash Chemists (Southern) Ltd [1953]
EWCA

Basically, an ITT is advertisement (made by the seller) and the offer is when the customer
approaches the seller with an offer to buy.

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So in an everyday example...you walk into a shop and see an item for £9.99 (this would be an ITT),
you then take it to the counter and prepare to pay £9.99 (the offer). The important concept here is
that an ITT is not binding i.e. when you go to the counter and the clerk says "oh sorry this item is
actually £29.99", you have no defence in demanding to be sold it for £9.99.

This is also called the 'Counter Offer' in which you can either accept or decline...or counter offer
yourself.

CITATIONS

HARVARD

Jonathan Kush (2017) " Distinguish between an offer and an invitation to treat giving examples to
illustrate the distinction" 123 Writing [Online] at https://www.123writing.com/sample/distinguish-
between-an-offer-and-an-invitation-to-treat-giving-examples-to-illustrate-the-distinction

Copyright © 2013-2021 123writing.com. All rights reserved. For revision and study purposes only.