Mr.

Andy wishes to know whether he can sue the shopkeeper for not selling of the book

to him.

Mr. Andy cannot take legal action to the shopkeeper because there is no contract exist.

Contract involves an element of agreement but not every agreement will result in a contract

recognizable by law. Besides, contract is an agreement enforceable by law, voluntarily,

deliberately, which is legally binding between the parties (at least two parties will be

involved) according to the Sec 2(h) Contracts Act 1950 of Malaysian Legislation. In this

section, first, the contract can be written or unwritten. Second, the other party can bring the

case to the court if breaching the contract. Third, each party acquires rights and duties to each

other after entering the contract. The elements of contract are offer, acceptance, intention to

create legal, consideration, certainty, and capacity.

Offer is the first element of a contract. According to section 2(a), Contracts Act 1950,

‘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 other to the act or abstinence, he is said to make a

proposal’. The person who makes an offer is called as an offeror. The ‘promisor’ (‘offeror’)

must have declared his readiness to undertake an obligation upon certain terms, leaving the

option of its acceptance or refusal to ‘the offeree’. For example, Affin Credit (Malaysia) Sdn

Bhd v Yap Yuen Fui. The communication of a proposal is complete when it comes to the

knowledge of the person to whom it is made according to section 4(1) of the Contracts Act

1950. The option arises when the offeror promises to keep the offer open for a specified

period. So, whether an advertisement is an offer or an invitation to treat depends on the

intention of the parties in each case. Advertisement of bilateral contracts are not offered

whereas advertisements of unilateral contracts are construed to be offers. At last, if a party

intends their words or conduct to constitute and offer, the courts will construe as such. Offer

is distinguished from invitations to treat, e.g., auctions, advertisement of tenders, catalogues,

price lists and goods displayed in shop windows and shelves. The advertisement of an auction

is not an offer to hold it but an invitation to treat. Mr Andy’s situation is an invitation to treat.

Based on the aforementioned discussion above, the offer is not established. There is no

contract between Andy and the shopkeeper.