NAME: MAKAFUI KOFI DZIMABI

INDEX: 10413418

ASSIGNMENT: CONTRACT TUTORIAL QUESTION NUMBER 3.

 From the facts, the area of contract law in question is offer and acceptance. An offer is a
promise by one party (the offeror) to enter into a contract, on certain terms, with the intention of
being bound as soon as the party to whom the promise is made (the offeree) signifies his
acceptance. Acceptance on the other hand is the final and unqualified expression of assent, by
words or conduct, to an offer. In order to determine whether there was offer and acceptance
between Kwasi Dompo and the Dealer hence a binding contract, the following issues must be
resolved.

First, whether the display of the scooters in the shop amounted to an offer or an invitation
to treat? The general principle is that, display of items in a shop even when prices are attached
amounts to an invitation for customers to make offers to purchase, that is, an invitation to treat
and not an offer to sell. This principle was established in the case of Pharmaceutical Society of
Great Britain v. Boots Cash Chemist.

Under section 18(1) of the Pharmacy and Poison Act 1993, it was illegal to sell certain drugs
containing poison without the supervision of a registered pharmacist. The plaintiff argued that, in
the self-service shop of the defendant, the display of drugs on shelves with prices attached
amounted to an offer to sell which was accepted by a customer once he picked a drug and put it
in his basket. At that point, there was no pharmacist to supervise the purchase hence the
defendant was breaking the law. The defendant also argued that, the display of drugs was merely
an invitation to treat and for that matter it was the customer who made an offer to buy at the
cash-desk where there was a registered pharmacist.

The court held that the display of drugs in a self-service shop amounted to an invitation to treat.
If the display were to be an offer then any customer who picked an item was bound to pay for it.
He had accepted the offer hence was bound to pay for the item even if he had made a mistake
and he wanted to change his mind. Therefore the display of scooters in the shop was only an
invitation to treat.

Next, whether Kwasi Dompo made an offer by selecting a scooter and making careful
enquiries about it? An offer by definition involves the offeror making a promise to enter into a
contract, with certain terms; with the intention of being bound by those terms should the offeree
accept. As explained in the case of NTHC Ltd v. Antwi, an offer must be final, meaning that it
becomes legally binding once the offeree communicates his acceptance of the terms. Dompo’s
conduct at the shop did not express any promise to enter into a contract. Neither did it express
any terms nor the intention to be bound by any terms. Therefore, selecting the scooter and
making careful enquiries about it did not amount to an offer.

Further, whether by taking the scooter and the note to Kwasi Dompo’s house, the dealer
made an offer? This can be determined using the same steps used in determining an offer from
above. By taking the scooter to Kwasi Dompo’s house, the dealer was expressing a willingness
to enter into a contract with Kwasi Dompo. The price of GH¢ 75 for the scooter and silence as
prescribed as a mode of acceptance constituted the terms of the contract and the intention to be
bound by those terms once Kwasi Dompo accepted those terms. Therefore, the dealer made an
offer to Kwasi Dompo when the Dealer took the scooter and the note to Kwasi’s house.

The dealer has made an offer to Kwasi Dompo which he would assume to be accepted if
Kwasi Dompo keeps quiet for three days. Therefore, can the dealer enforce a contract against
Mr. Dompo if Mr. Dompo keeps quiet for three days? The general principle is that, an offeror
cannot enforce a contract against an offeree by stipulating that the offeree’s silence will be
considered as acceptance. Consequently, an offeree who does nothing after an offer has been
made to him stipulating silence as a mode of acceptance has been made to him is not bound by
any contract. Case in point is Felthouse v. Bindley:

An uncle entered into negotiations with his nephew for the purchase of a horse. There
was a misunderstanding about the price. He wrote to his nephew offering to buy the horse and
stating,” If I hear no more about him, I will consider the horse mine at £30 15s. The nephew did
not reply to the letter but gave instructions for the horse not to be sold. The horse was mistakenly
sold to another person and the uncle sued.

The court held that there was no contract because the nephew did not communicate his
acceptance to his uncle. He was not bound by his uncle’s prescription of silence as a mode of
acceptance. The court reasoned that silence could mean acceptance or rejection. Also, the
nephew was not legally bound to do anything in response to the offer made to him. Similarly, the
dealer cannot enforce any contract against Mr. Dompo if Mr. Dompo kept quiet for three days as
prescribed.

On the other hand, can Kwasi Dompo enforce a contract against the dealer if he (Kwasi
Dompo) kept quiet for three days? The principle is that, where an offeror has stipulated silence
as a mode of acceptance, the offeree’s silence in response to the terms of the offer could be
binding on the offeror. He cannot complain that the acceptance was not communicated to him. It
was noted in Felthouse v. Bindley that if the nephew wanted to enforce the contract against his
uncle, on grounds that his silence amounted to an acceptance, he could have succeed. Therefore,
Mr. Dompo could succeed in enforcing a contract against the dealer.

Further, did Kwasi Dompo’s letter of acceptance constitute a valid acceptance although
only an empty envelope was posted to the dealer? The general principle is that, an acceptance
has no effect unless and until it is communicated to the offeror or otherwise brought to his notice.
Case in point is Fofie v. Zanyo.

The defendants and others, as managers of an estate wrote a letter to the defendant offering to
sell a building out of the estate. The plaintiff argued that he accepted the offer and paid in
installments. The defendant denied that the plaintiff accepted the offer and contended that the
payments were in relation to rent owed by the plaintiff.
The court held that, for a valid acceptance to exist there had to be positive evidence by words, in
writing or conduct from which the court might infer acceptance and the acceptance must have
been communicated to the offeror. However, there was no such evidence and nothing was
communicated to the defendant. Therefore, there was no acceptance. Also, the court held that
although there was no prescribed mode of acceptance, a letter by post would have been
reasonable since the offer was by post. Kwasi Dompo wrote a letter of acceptance but posted an
empty envelope. Though there was an acceptance it was not communicated to the dealer so it
was not valid. However, silence had already been stipulated so communicating an acceptance
was not necessary.

The final question therefore, is whether there was an enforceable contract between Mr.
Dompo and the dealer? From the foregoing, it has been established that there was offer and
acceptance between both parties. Consequently, the contract became legally binding as soon as
there was an acceptance, in this case, Mr. Dompo’s silence for three days. The dealer is bound to
sell the scooter to Mr. Dompo at GH¢75 as stated in the terms of the contract. He cannot legally
claim the scooter after a week even if prices increased by 200%.

Kwasi Dompo could sue the dealer for a breach of contract and demand for specific
performance of the contract.