Question 1 (a)

The first issue to determine is Ali’s advertisement is an offer or just an invitation to

treat. An offer is a promise to be bound on particular terms. By accepting the offeree,
the offer can result in a legally enforceable contract. It is important to distinguish the
offer from other statements that do not form the basis of an enforceable contract.

In particular, an offer must be distinguished from an invitation to treat, which is an

invitation to others to make offers. The person making the invitation does not
necessarily accept any offer to them. Examples of invitations to treat are: displays of
goods in a shop window (Fisher v Bell (1961)); displays of goods on the shelves of a
self-service shop (Pharmaceutical Society of Great Britain v Boots Cash Chemists
(1953)). Another example is Minister for Industry and Commerce v Pim (1966),
wherein the defendant put a suit in his shop window and this displayed the credit price
for the suit but not the cash price. The court held that the defendant did not breach
legislation requiring the display of the cash price because the legislation only applied to
offers for sale. The display is an invitation to treat and the law did not extend to such an
invitation.

Usually, newspaper or other public advertisements only amount to an invitation to

treat and cannot be accepted to form a binding contract (Partridge v Crittenden (1968)).
There are occasions, however, when an advert can amount to a genuine offer capable of
acceptance by anyone to whom the offer is addressed. Thus, for example, in Carlill v
Carbolic Smoke Ball Co (1893), the court held that in the particular circumstances of
the case, the defendant’s advertisement was an offer to all the world, capable of
acceptance, and accepted by the plaintiff.

On the fact, the Defendant, the Carbolic Smoke Ball Company of London
(Defendant), placed an advertisement in several newspapers on November 13, 1891,
stating that its product, “The Carbolic Smoke Ball”, when used three times daily, for
two weeks, would prevent colds and influenza.  The makers of the smoke ball
additionally offered a 100£ reward to anyone who caught influenza using their product,
guaranteeing this reward by stating in their advertisement that they had deposited 1000£
in the bank as a show of their sincerity.  The Plaintiff, Lilli Carlill (Plaintiff), bought a
smoke ball and used it as directed.  Several weeks after she began using the smoke ball,
Plaintiff caught the flu.
 Applying the foregoing to the situation in the question, it might appear at first sight
that Ali’s advertisement in the paper was no more than an invitation to treat and
therefore not capable of being accepted by any of the other parties. Ali placed an
advertisement in the Saturday edition of his local newspaper to inform and invite other
to buy his product. When Sam saw the advertisement, he immediately posted a letter of
acceptance of Ali’s offer in order to make sure he got the carpet. At 2pm that Saturday,
Eddie came to Ali’s shop and pay RM5,000 in cash to Ali without checking the
condition of the carpet as he trusted Ali’s advertisement. Ali took the cash and sold the
carpet to Eddie. On Monday morning, Sam’s letter arrived at Ali’s office.

As the conclusion, Ali’s advertisement is legal. The main purpose of Ali’s

advertisement is invitation to treat but not offer. When Sam sent the letter to Ali to buy
the carpet while Eddie pay RM5000 in cash to Ali to get the carpet, it mean both buyer
and seller accept the advertisement and become an offer. The wording of the advert was
in such categorical terms that it might be seen to have been an offer to the whole world,
stating his unreserved commitment to enter into a contract with the first person who
accepted it.
Question 1 (b)

Yes, Sam has entered into a legally-binding contract with Ali at the moment he posted a
letter acceptance of Ali’s offer. As stated in section 4(2)(a), the communication of an
acceptance is complete as against the offeror, when it is put in a course of transmission
to the offeror, so as to be out of the offeree. When the letter has posted the acceptor has
put it ‘in the course of transmission’ in such a way that he no longer has any control
over it. The transaction becomes binding irrespective of any delay or disappearance in
the course of transit.

In the case of Entores Ltd. v Miles Far East Corporation, it was held that ‘when a
contract is made by post then it is clear law. When the letter is put into the post box,
then the acceptance is said to be completed. This is the place where the contract is
made.’

After that, in the case of Ignatius v Bell, the court held that if the letter did not
successfully sent to the office on time, it would still be accepted in the time of
publication. It was regarded as good acceptance where communication by post is the
method contemplated by the parties.

On top of that, generally we can say that in cases of acceptance through post, the
acceptance is complete upon posting. However, this rule may be excluded by the
express terms of the offer. This can refer to the cases of Holiwell Securities v Hughes
where the offer prescribed that the acceptance must be by notice in writing to the
intending vendor. Thus it was held that the mere posting of the letter of acceptance is
not sufficient.

Besides, there is another exception to the aforesaid rule as regards acceptance through
the post lies in cases of instantaneous circumstances. For example, the use of telephone,
telex, or in today’s case using ‘sms’ will not amount to acceptance.

On the facts, the contract made between Sam and Ali is under the postal rule. Sam is
said to be entered into a legally-binding contract when the letter is posted by Sam and it
is considered as a valid contract. Under the section 4(2)(a), the offer to the Ali is
complete when Ali communicates the request to the proposer and is not within the
power of the Sam. When the letter is posted, the acceptance is complete. This situation
is similar to the case of Entores Ltd. v Miles Far East Corporation. The contract
between Sam and Ali is consider as clear law once he puts the letter in the post box. The
acceptance is said to be completed, and that is the place where the contract is made.
This is because in this cases the post is used as a means of communicating the
acceptance of an offer, the acceptance is complete as soon as it is posted. Refer to the
question, the letter posted by Sam arrived at Ali’s office is on the coming Monday
morning. Then, it can refer to the case of Ignatius v Bell, the acceptance of the contract
between Sam and Ali is complete when Sam posted the letter, even though the letter did
not reach to Ali on time. It was regarded as good acceptance where communication by
post is the method contemplated by the parties.

In conclusion, Sam has entered into a legally-binding contract with Ali when he posted
a letter of acceptance of Ali’s offer, it means Sam accept the advertisement and it will
be count as an offer.
Question 2

In this case, Paul was a plaintiff and Brad was a defendant. Paul was knocked
down by Brad and he was suffering in broken arms and broken legs, he wanted to sue
Brad, although Brad’s car was knocked by a lorry driven by Charles and then caused
him to knock into Paul. Paul can seek damages based on the theory of negligence. The
‘neighbour principle’ as stated by Lord Atkin in the case of Donoghue v Stevenson was
formed between them. All of the facts and circumstances should be considered as Brad
can reasonably foresee any factors could be happening and take reasonable care to avoid
omissions or acts which will likely injure his neighbor such as he can drive slower, so
that when the lorry knocked into his car, his car perhaps will not knock into Paul. Paul’s
neighbour, Cassie should not make noise and sing at night with friends loudly. Maybe
they know that this will affect other people who want to rest, but they still do this, this
automatically considered as breach of duty because based on the test ‘neighbour
principle’ they should take care of their neighbour.

Negligence refers to defendant fails to take reasonable care of the plaintiff and
causing the plaintiff to get injured or property being damaged. Negligence usually
includes the omission of doing something which a reasonable person would do or doing
something which an ordinary, reasonable and prudent person would not do. There are
three ingredients of negligence which are the defendant must have a duty of care against
the plaintiff, the defendant must breach the duty to take care and lastly the failure must
cause damage or injury to the plaintiff and the damages should not be too partial from
the defendant’s breach (causation).

Duty of care states that although the person is a stranger, but you are still liable
to him. Based on the ‘neighbour principle’ that stated by Lord Atkin in the case of
Donoghue v Stevenson, one should take reasonable care to avoid acts and omissions
which can be reasonably foreseen that may be likely injure your neighbour or result in
damages. In the case Donoghue v Stevenson, Mrs Donoghue and her friend went to a
cafe and have a drink. Her friend bought her a ginger beer. She consumed half of the
ginger beer, then found out that there was a decomposed snail inside the ginger beer.
She started becoming seriously ill and she sued the manufacturer of the ginger beer for
negligence. The first court stated that there has no contract between Mrs Donoghue and
the manufacturer as the ginger beer was bought by her friend. Then, the Court of
Appeal, Lord Atkin introduced Law of tort with ‘neighbour principle’. It states that the
manufacturer should take reasonable care of the consumer by making sure the bottle did
not contain any impurities or noxious matter. The manufacturer of the ginger beer was
liable to Mrs Donoghue as the duty of care was broken. There is an absence of
reasonable care that should be taken by the manufacturer. Thus, the manufacturer owed
a duty to Mrs Donoghue.

On the facts, although it is not Brad’s fault that caused Paul to suffer in broken
arms and broken legs and he was hospitalised for seven months, Brad is still liable to
Paul as based on the ‘neighbour principle’, Brad has owed a duty of to Paul. Brad can
drive slower and further from Paul once he saw Paul was walking along the Jalan Mala
as a reasonable man can foresee the facts and circumstances that could be happening, so
that he should avoid the acts and omissions that could injure Paul.

Breach of duty occurs when someone has owed a duty of care to another person
and he had failed to perform it. If the person’s breach of duty causes injury or loss to
another person, he is liable in negligence. An ordinary, reasonable and prudent person
will not do something that is omissive such as negligence. If a person understands and
knows well why he did it and knows that he should not do this, then he is considered as
a reasonable person. The court will consider four main elements when deciding a case
of whether the defendant has breached his duty of care. The four elements are likelihood
of harm or injury to a person, seriousness of injury that is risked, practicability of
precautions, state of knowledge and social benefits.

Likelihood of injury to a person means that the defendant is expected to take

precaution against a big risk of harm to another person. The likely risk usually will
require a good and high level of precaution. In the case of Bolton v Stevenson, Bolton
sued a home cricket club and all the members. Bolton lived on a side street which is
next to the cricket ground. She was hit by one of the longest balls during the last forty
years when she was at the gate in front of the house. Before this happened, the field was
surrounded by seven foot high fence. Over a thirty year period, about six to seven balls
had been hit onto the plaintiff’s side street. So in order to avoid an incident, the cricket
club had increased the height of the fence to twelve feet. Bolton sued the cricket house
under public nuisance and negligence. The Court of Appeal stated that the cricket club
was not negligent in allowing cricket to be played without taking any additional
precaution and had not breached the duty of care as he already had increased the height
of the fence.

Seriousness of injury that could be happening should be foreseen by a

reasonable man. If the risk of getting serious injured is higher, then a higher safety
measure will be required. In this case, Paris v Stepney Borough Council, plaintiff was
employed by defendant as a mechanic. The plaintiff had only one good eye, and the
other eye was blinded. The defendant knew well the situation of the plaintiff, but he did
not provide goggles for the plaintiff when the plaintiff was working. When the plaintiff
was removing a part from the underneath of a vehicle, a piece of metal flew into his
good eye, causing him to be totally blinded. The House of Lord found out that even
though the probability of causing the plaintiff to be total blinded was small, the plaintiff
still risked higher injury of getting total blindness. Thus, the defendant should have
provided goggles to the plaintiff since they must be aware of the consequences of the
plaintiff’s good eye getting injured.

For the practicability of precautions, a practical or reasonable solution should be

taken in order to reduce the rick of injury or damage that could be happening to a
person. Virtually, the risk must be balanced against the safety measures necessary to
eliminate it such as a greater risk of injury needed greater precaution. In the case of
Latimer v A.E.C, the defendant’s factory floor was being flooded due to heavy storms,
and made the floor became slippery and oily. Although the water had been drained, the
floor was still slippery and there was oil rose to the surface of the floor. The defendant
had taken everything possible and reasonable to avoid accidents such as put up warning
signs, informed the staff of the dangers, mopped the floor and placed sawdust on the
slippery floor. The plaintiff went into the factory and fell down and hurt his ankle. The
court held that the only other possible step the defendant could have taken to avoid
accident was to close the factory which was considered as an unreasonable solution.
Thus, the plaintiff lost the case and did not receive any compensation.
 State of knowledge states that a defendant is under a duty to take reasonable care
of a plaintiff if the risk can be foreseen. If the risk cannot be foreseen, then the
defendant is considered as he had no knowledge of it and he had not breached the
standard of care. In the case of Roe v Minister of Health, the plaintiff received a minor
operation in a hospital. He was given a spinal anaesthetic which was contained in a
glass ampoule, which was kept in phenol before use. There was an ‘invisible crack’ on
the glass ampoule. At that time, anaesthetist knew that the phenol can contaminate the
anaesthetic, but they had no knowledge about the phenol can seep through this invisible
crack into the glass ampoule. The contaminated anaesthetic was given to the plaintiff
and caused the plaintiff to be paralysed from the waist down. The court held the
defendant was not negligent as the risk was unforeseeable at that time. This was because
they had no knowledge about the risk at that time. Thus, there was no breach of duty.

If the defendant’s activity has social benefit or social utility, then he may
exercise a less degree of care to a person. In Daborn v Bath Tramways Motor Co. Ltd,
during the World War II in England, the plaintiff was injured when collided with the
defendant’s ambulance. The ambulance was a left-hand drive vehicle which did not fit
with signals. When the defendant turned after waving arm outside the window to
indicate, the accident happened. The Court of Appeal said converting the left-hand drive
vehicle would be difficult and expensive. Since it was a wartime and the defendant was
doing the important job, this value to society meant that the defendant required a less
degree of care and it was not negligent.

On the facts, The courts will consider four main factors when deciding whether
the defendant has breached his standard of care once they have considered the standard
of care required of the defendant. The defendant, Brad owed a duty of care to the
plaintiff, Paul which the ‘neighbour principle’ had been created between them. The
defendant breached the duty when he collided Paul and caused him to suffer broken
arms and legs. As a reasonable man, the defendant should stay a distance from the
plaintiff when saw the plaintiff was walking along the road as he could reasonably
foresee the facts and circumstances.

When a defendant breached the duty of care to a plaintiff and caused the plaintiff
to suffer from injury or loss, this can be known as causation. This means that the
primary cause of the damage. ‘But for test’ is used to determine the actual causation.
This test asks about, ‘but for the existence of A, would B have occurred?’ if the answer
is ‘yes’, then A is a proximate cause of the result B. In Barnett v Chelsea and
Kensington Hospital, Mr Barnett went to a hospital due to suffer with nausea and
stomach pain. The nurse who had seen him, telephoned the doctor. However, the doctor
refused to examine him and asked the nurse to send him back. Mr Barnett died after five
hours because of arsenic poisoning. The court held the doctor was not negligent as his
failure to examine and treat Mr Barnett was not the factor of causing him died, even
though the doctor had breached the duty of care. Even if the doctor had examined Mr
Barnett at that time, it was still too late to save his life. The Wagon Mound test or
remoteness test is to determine whether the damage is too remote. The damage must can
be foreseen. If the injury can be seen, such as physical injury, the plaintiff can claim
compensation or damage. If the injury cannot be seen, such as internal bleeding, the
plaintiff cannot claim any damage. In The Wagon Mound case, the defendant was
negligent in allowing the oil to be leaking and spreading over the sea surface. The
defendant did not foresee that the oil can catch fire. However, due to the sparks from
welding operation, the oil did catch fire. Thus, resulting in damaging the plaintiff’s port.
The Privy Council found out that the defendant was not liable because since the damage
suffered was unforeseeable after applying a reasonable foreseeability test, so it was
considered as too remote.

On the facts, Paul suffered in broken arms and broken legs which was caused by
Brad. This was a physical injury which can be seen clearly. So Paul can claim
compensation or damages from Brad.

After Paul was hospitalised for seven months, he was then discharged and rested
at home. His neighbour, Cassie and her friends loved to make loud noise and sing at
night. This caused Paul to be stressed and cannot have a good rest. Paul can sue his
neighbour under private nuisance. A private nuisance is a civil wrong which someone
affects another person’s rights in the enjoyment or use of his own land and property.
Some common types of private nuisance are loud noise, soil pollution, air or water
pollution and noxious odour. Private nuisance lawsuits usually will happen between
neighbours. In order to proceed on a private nuisance, a plaintiff must prove that he
owns the land and has rights to use or enjoyment interfered with. Moreover, the plaintiff
must also prove that the action of the defendant actually affects his enjoyment of the
land. He must prove the invasion of the defendant is intentional and unreasonable.
Noise is an actionable private nuisance if these two elements satisfy together. That are
injurious to the health and comfort of a person as well as the injury is unreasonable. It
had shown clearly in Rose v Chaikin, when the defendants had a windmill constructed
on their property which making loud noise and cause the plaintiff cannot sleep at night.
The plaintiff then suffered in emotional distress. The court held the defendant’s
windmill was a private nuisance, so the defendant should shut it down.

On the facts, Paul’s neighbour, Cassie, who loves to make noise and sing at
night with her friend was liable to Paul under a private nuisance lawsuit. Because of the
action of Cassie and her friends, Paul was suffered in emotional stress and making him
cannot enjoy his rest at home after he was discharged from hospital. Paul’s broken arms
and legs cannot be recovered rapidly as he could not get enough and good rest.

In conclusion, in the first case which Paul sued Brad under negligence, Paul was
supposed to be won as the defendant, Brad owed Paul a duty of care and he had failed to
achieve it and this was considered as breach of duty. Paul’s damage was caused by the
action of the defendant and under causation, the defendant was liable to Paul. Therefore,
Paul can claim damages from the defendant. In the other case which Paul sued his
neighbour under private nuisance, Paul should be won this case too due to damage for
emotional distress can be recovered in the action for private nuisance. Paul needed a
good and enough rest after facing an accident. His arms and legs were broken, as a
neighbour, she should know about Paul’s situation and should not make any noise at
night. Thus, Paul can claim compensation.