Terms in an Invitation to treat
Hi everyone hoping someone could help with some ideas!
I've read through lots of threads and been unable to find anything that help with my specific question so hopefully this is not a duplicate.
As part of a moot question we have been given it states one party offering to sell a car with a 'ono' price and a telephone number followed by 'after 6pm'
We have been asked to argue that this,'after 6pm', was a term of the contract and not just a 'convenience' (the argument of the applicant) and that offers made before this time therfore need not be considered.
I have considered Fisher v Bell in relation to freedom of contract and that the invitee can choose who, if anyone, they wish to contract with so therefore could choose not to accept offers made before this time but this still doesn't make it a 'term'??
Also considered Blackpool and Fylde Aero Club Ltd. v Blackpool Borough Council
In the case above it was held that tenders that were to be put forward correctly in a prescribed manner (before a certain date and time). In this case the courts implied a term that such a statement suggested that all tenders (offers) put forward before this date would be given equal consideration and as such the statement in the invite to treat was a term. In relation to our scenario there is an express statement indicating acceptable conditions to offer under (after 6pm) and therefore we would hold that the term was both relevant and offers made outside of this term need not be considered.
I still feel like i'm not actually suggesting it is a 'term' only that the claimant cannot impose their own terms on the invitation, i.e that offers made anytime must be considered equally.
Hope this makes a little sense and look forward to any responses!
I've read through lots of threads and been unable to find anything that help with my specific question so hopefully this is not a duplicate.
As part of a moot question we have been given it states one party offering to sell a car with a 'ono' price and a telephone number followed by 'after 6pm'
We have been asked to argue that this,'after 6pm', was a term of the contract and not just a 'convenience' (the argument of the applicant) and that offers made before this time therfore need not be considered.
I have considered Fisher v Bell in relation to freedom of contract and that the invitee can choose who, if anyone, they wish to contract with so therefore could choose not to accept offers made before this time but this still doesn't make it a 'term'??
Also considered Blackpool and Fylde Aero Club Ltd. v Blackpool Borough Council
In the case above it was held that tenders that were to be put forward correctly in a prescribed manner (before a certain date and time). In this case the courts implied a term that such a statement suggested that all tenders (offers) put forward before this date would be given equal consideration and as such the statement in the invite to treat was a term. In relation to our scenario there is an express statement indicating acceptable conditions to offer under (after 6pm) and therefore we would hold that the term was both relevant and offers made outside of this term need not be considered.
I still feel like i'm not actually suggesting it is a 'term' only that the claimant cannot impose their own terms on the invitation, i.e that offers made anytime must be considered equally.
Hope this makes a little sense and look forward to any responses!
This seems a slightly odd moot problem, at least in terms of how it's worded--could you copy and paste the actual text of the problem? Are you being asked to argue that the offer made before 6 must not have been considered, or that the offeror was not obliged to consider it? I'm not sure which side you're acting for, and knowing that would help some.
The "after 6 pm" requirement isn't a term of the contract of sale--you need to argue that it's a term in the collateral contract where the offeror has bound himself to sell to the person who makes the nearest offer. I'm not sure Fisher v Bell helps you much--at least, I don't really see how it does.
I think you need to establish that the offeror is bound to sell, and that he is bound to consider only tenders that satisfy specific requirements. The requirement to consider offers made in time isn't one imposed by the claimant--it's implied under Blackpool and Fylde Aero Club & Blackpool BC. Why should the "after 6 pm" clause be incorporated as a term of the (collateral) contract to sell to the person who makes the best offer?
The "after 6 pm" requirement isn't a term of the contract of sale--you need to argue that it's a term in the collateral contract where the offeror has bound himself to sell to the person who makes the nearest offer. I'm not sure Fisher v Bell helps you much--at least, I don't really see how it does.
I think you need to establish that the offeror is bound to sell, and that he is bound to consider only tenders that satisfy specific requirements. The requirement to consider offers made in time isn't one imposed by the claimant--it's implied under Blackpool and Fylde Aero Club & Blackpool BC. Why should the "after 6 pm" clause be incorporated as a term of the (collateral) contract to sell to the person who makes the best offer?
thanks for quick reply!
Full text is:
In the Court of Appeal
Cross v Adams [2010]
Archie Adams decided to sell his beloved Porsche 911 turbo motorcar, as he needed the money to pay for his forthcoming marriage to Betty. He thought it would be cheaper to sell the car privately rather than through his local Porsche dealership. He put a notice on the rear windscreen of his Porsche stating:
For sale. One careful owner. £35,000 ono. Please telephone 623987 after 6.00pm.
On Monday 1st March at 8.20 am, Bertie Bones was driving to work when he got caught up in a traffic jam. His car was in a long queue behind Archie's car. He noticed the “for sale” sign and having always wanted a 911 turbo made a note of the telephone number intending to phone the owner that evening to make him an offer.
That same morning, Carly Cross, also noticed the “for sale” on Archie’s car whilst she was driving to work. She too was interested in purchasing the car and made a note of the telephone number. During her tea break at 11.00 a.m. she decided to telephone the owner of the Porsche to make them an offer. When she telephoned only Betty was at home and so Carly left the following message with her: “Tell Archie that I am very interested in purchasing the 911. I am willing to pay £33,500 for the car. If I do not hear from him this afternoon I will assume the car is mine”. Betty wrote down the message together with Carly’s work telephone number and pinned it to their notice board in the kitchen. When Archie came home from work at 5.15 p.m. he saw the message from Carly and decided to accept her offer. He telephoned the number he was given. Although Carly was still at work when Archie telephoned the switchboard had closed at 5.00 p.m. and so unable to speak directly to Carly, Archie left a voice mail for her saying he would sell the car to her for £33,500.
At 6.05 p.m. Bertie telephoned Archie and offered to buy the 911 from him for the full asking price. Archie accepted. The next day when at 9.25 a.m. Carly heard the voice mail from Archie, she was delighted to learn that the car was hers. She immediately telephoned Archie to make arrangements for payment and delivery. It was Betty who told Carly that the car had already been sold to Bertie the previous evening. Believing the car to be rightfully hers, Carly decided to sue Archie for breach of contract.
Deed J in the High Court found for Mr. Adams, and stated there was no contract as:
(1) Miss Cross had not accepted Mr Adams offer to sell the car to her until 9.25 a.m. on Tuesday 2nd March and by then the car had already been rightly sold to Mr. Bones the previous evening.
(2) In any respect it was an express term and condition of the contract that offers could only be made after 6.00 p.m. and since Miss Cross had made her offer at 11.00 a.m. it need not be considered.
Miss Cross appeals to the Court of Appeal (Civil Division) on the following two grounds:
(1) The contract was formed when Mr. Adams left the voicemail for Miss Cross at 5.15 p.m. on the 1st March and not at 9.25 a.m. on Tuesday 2nd March as stated by the trial judge.
AND
(2) The trial judge erred in that it was not a condition of the contract that offers would only be considered after 6.00 p.m. The time stipulated was merely a convenience and not a condition.
In this moot we are acting for the defendant 'Archie Adams'. The first ground is easy enough to work out but the second ground is causing me a rather large headache!
Full text is:
In the Court of Appeal
Cross v Adams [2010]
Archie Adams decided to sell his beloved Porsche 911 turbo motorcar, as he needed the money to pay for his forthcoming marriage to Betty. He thought it would be cheaper to sell the car privately rather than through his local Porsche dealership. He put a notice on the rear windscreen of his Porsche stating:
For sale. One careful owner. £35,000 ono. Please telephone 623987 after 6.00pm.
On Monday 1st March at 8.20 am, Bertie Bones was driving to work when he got caught up in a traffic jam. His car was in a long queue behind Archie's car. He noticed the “for sale” sign and having always wanted a 911 turbo made a note of the telephone number intending to phone the owner that evening to make him an offer.
That same morning, Carly Cross, also noticed the “for sale” on Archie’s car whilst she was driving to work. She too was interested in purchasing the car and made a note of the telephone number. During her tea break at 11.00 a.m. she decided to telephone the owner of the Porsche to make them an offer. When she telephoned only Betty was at home and so Carly left the following message with her: “Tell Archie that I am very interested in purchasing the 911. I am willing to pay £33,500 for the car. If I do not hear from him this afternoon I will assume the car is mine”. Betty wrote down the message together with Carly’s work telephone number and pinned it to their notice board in the kitchen. When Archie came home from work at 5.15 p.m. he saw the message from Carly and decided to accept her offer. He telephoned the number he was given. Although Carly was still at work when Archie telephoned the switchboard had closed at 5.00 p.m. and so unable to speak directly to Carly, Archie left a voice mail for her saying he would sell the car to her for £33,500.
At 6.05 p.m. Bertie telephoned Archie and offered to buy the 911 from him for the full asking price. Archie accepted. The next day when at 9.25 a.m. Carly heard the voice mail from Archie, she was delighted to learn that the car was hers. She immediately telephoned Archie to make arrangements for payment and delivery. It was Betty who told Carly that the car had already been sold to Bertie the previous evening. Believing the car to be rightfully hers, Carly decided to sue Archie for breach of contract.
Deed J in the High Court found for Mr. Adams, and stated there was no contract as:
(1) Miss Cross had not accepted Mr Adams offer to sell the car to her until 9.25 a.m. on Tuesday 2nd March and by then the car had already been rightly sold to Mr. Bones the previous evening.
(2) In any respect it was an express term and condition of the contract that offers could only be made after 6.00 p.m. and since Miss Cross had made her offer at 11.00 a.m. it need not be considered.
Miss Cross appeals to the Court of Appeal (Civil Division) on the following two grounds:
(1) The contract was formed when Mr. Adams left the voicemail for Miss Cross at 5.15 p.m. on the 1st March and not at 9.25 a.m. on Tuesday 2nd March as stated by the trial judge.
AND
(2) The trial judge erred in that it was not a condition of the contract that offers would only be considered after 6.00 p.m. The time stipulated was merely a convenience and not a condition.
In this moot we are acting for the defendant 'Archie Adams'. The first ground is easy enough to work out but the second ground is causing me a rather large headache!
OK so you want to argue that the reference to 6pm is a specific part of the offer so you don't accept if you ring before 6
Don't think Blackpool is very helpful because this (special case) is about an obligation to consider bids submitted in accordance with the terms of the offer. For the purposes of ground (2) whether there is an obligation to consider a bid or not is irrelevant because its an acceptance not an offer (and therefore automatically forms a contract if there is offer and acceptance). In your moot the issue is whether the purported acceptance meets the term of the offer (assuming for the purposes of ground 2 that it is an offer).
There is specific case law on this point. If you are acting for Adams the relevant law is the traditional "mirror image" rule whereby acceptance must exactly match the offer - i.e. you are arguing that the 11am phone-call is in fact a counter-offer.
You need to think about the construction of the reference to 6pm. i.e. is it a specific term of the offer or is it an irrelevant request? Might be worth having a quick look at a chapter on interpretation
Don't think Blackpool is very helpful because this (special case) is about an obligation to consider bids submitted in accordance with the terms of the offer. For the purposes of ground (2) whether there is an obligation to consider a bid or not is irrelevant because its an acceptance not an offer (and therefore automatically forms a contract if there is offer and acceptance). In your moot the issue is whether the purported acceptance meets the term of the offer (assuming for the purposes of ground 2 that it is an offer).
There is specific case law on this point. If you are acting for Adams the relevant law is the traditional "mirror image" rule whereby acceptance must exactly match the offer - i.e. you are arguing that the 11am phone-call is in fact a counter-offer.
You need to think about the construction of the reference to 6pm. i.e. is it a specific term of the offer or is it an irrelevant request? Might be worth having a quick look at a chapter on interpretation
Original post by jacketpotato
OK so you want to argue that the reference to 6pm is a specific part of the offer so you don't accept if you ring before 6
Don't think Blackpool is very helpful because this (special case) is about an obligation to consider bids submitted in accordance with the terms of the offer. For the purposes of ground (2) whether there is an obligation to consider a bid or not is irrelevant because its an acceptance not an offer (and therefore automatically forms a contract if there is offer and acceptance). In your moot the issue is whether the purported acceptance meets the term of the offer (assuming for the purposes of ground 2 that it is an offer).
There is specific case law on this point. If you are acting for Adams the relevant law is the traditional "mirror image" rule whereby acceptance must exactly match the offer - i.e. you are arguing that the 11am phone-call is in fact a counter-offer.
You need to think about the construction of the reference to 6pm. i.e. is it a specific term of the offer or is it an irrelevant request? Might be worth having a quick look at a chapter on interpretation
Don't think Blackpool is very helpful because this (special case) is about an obligation to consider bids submitted in accordance with the terms of the offer. For the purposes of ground (2) whether there is an obligation to consider a bid or not is irrelevant because its an acceptance not an offer (and therefore automatically forms a contract if there is offer and acceptance). In your moot the issue is whether the purported acceptance meets the term of the offer (assuming for the purposes of ground 2 that it is an offer).
There is specific case law on this point. If you are acting for Adams the relevant law is the traditional "mirror image" rule whereby acceptance must exactly match the offer - i.e. you are arguing that the 11am phone-call is in fact a counter-offer.
You need to think about the construction of the reference to 6pm. i.e. is it a specific term of the offer or is it an irrelevant request? Might be worth having a quick look at a chapter on interpretation
Thanks, I've been scratching my head over this one. It's a somewhat oddly constructed problem.
Original post by jacketpotato
OK so you want to argue that the reference to 6pm is a specific part of the offer so you don't accept if you ring before 6
Don't think Blackpool is very helpful because this (special case) is about an obligation to consider bids submitted in accordance with the terms of the offer. For the purposes of ground (2) whether there is an obligation to consider a bid or not is irrelevant because its an acceptance not an offer (and therefore automatically forms a contract if there is offer and acceptance). In your moot the issue is whether the purported acceptance meets the term of the offer (assuming for the purposes of ground 2 that it is an offer).
There is specific case law on this point. If you are acting for Adams the relevant law is the traditional "mirror image" rule whereby acceptance must exactly match the offer - i.e. you are arguing that the 11am phone-call is in fact a counter-offer.
You need to think about the construction of the reference to 6pm. i.e. is it a specific term of the offer or is it an irrelevant request? Might be worth having a quick look at a chapter on interpretation
Don't think Blackpool is very helpful because this (special case) is about an obligation to consider bids submitted in accordance with the terms of the offer. For the purposes of ground (2) whether there is an obligation to consider a bid or not is irrelevant because its an acceptance not an offer (and therefore automatically forms a contract if there is offer and acceptance). In your moot the issue is whether the purported acceptance meets the term of the offer (assuming for the purposes of ground 2 that it is an offer).
There is specific case law on this point. If you are acting for Adams the relevant law is the traditional "mirror image" rule whereby acceptance must exactly match the offer - i.e. you are arguing that the 11am phone-call is in fact a counter-offer.
You need to think about the construction of the reference to 6pm. i.e. is it a specific term of the offer or is it an irrelevant request? Might be worth having a quick look at a chapter on interpretation
By this i think you mean the advert in the window of the car is a unilateral offer and the 11 am phonecall is a counter offer? I did consider this but assumed (maybe incorrectly) that the limited stock argument (Partridge v Crittenden) would apply as everyone fulfilling the terms of the contract could claim to have accepted the offer but there is only one car??
Thanks very much for help :-) I have been telling myself that i'm missing something simple and obvious and looking too deeply into this as it is a first year/first moot problem.... but seems maybe it is a little more complicated than that!
Original post by SatinBlack
By this i think you mean the advert in the window of the car is a unilateral offer and the 11 am phonecall is a counter offer? I did consider this but assumed (maybe incorrectly) that the limited stock argument (Partridge v Crittenden) would apply as everyone fulfilling the terms of the contract could claim to have accepted the offer but there is only one car??
Thanks very much for help :-) I have been telling myself that i'm missing something simple and obvious and looking too deeply into this as it is a first year/first moot problem.... but seems maybe it is a little more complicated than that!
Thanks very much for help :-) I have been telling myself that i'm missing something simple and obvious and looking too deeply into this as it is a first year/first moot problem.... but seems maybe it is a little more complicated than that!
He specifies "ono", which I would have said implied that he will sell to the person who makes the best/nearest offer--so the limited stock argument would really hold. Partridge v Crittenden did not include an undertaking to sell to the person who made the best/nearest offer, hence the importance (and commercial soundness) of not treating an advert as an offer that would need to be revoked when stocks ran out.
Original post by jjarvis
He specifies "ono", which I would have said implied that he will sell to the person who makes the best/nearest offer--so the limited stock argument would really hold. Partridge v Crittenden did not include an undertaking to sell to the person who made the best/nearest offer, hence the importance (and commercial soundness) of not treating an advert as an offer that would need to be revoked when stocks ran out.
OK thanks.... I can see the logic in that!
We have mainly concentrated on acceptance being effective when communicated 'Entores' for ground 1. Plus the extreme unlikelyness of the extension of the postal rule to cover voicemail! But following through on the counter offer logic you would hold that Archie's voicemail was in fact a further counter offer as this changed the terms of acceptance?? i.e not acceptance by silence (even though not possible)
Original post by SatinBlack
OK thanks.... I can see the logic in that!
We have mainly concentrated on acceptance being effective when communicated 'Entores' for ground 1. Plus the extreme unlikelyness of the extension of the postal rule to cover voicemail! But following through on the counter offer logic you would hold that Archie's voicemail was in fact a further counter offer as this changed the terms of acceptance?? i.e not acceptance by silence (even though not possible)
We have mainly concentrated on acceptance being effective when communicated 'Entores' for ground 1. Plus the extreme unlikelyness of the extension of the postal rule to cover voicemail! But following through on the counter offer logic you would hold that Archie's voicemail was in fact a further counter offer as this changed the terms of acceptance?? i.e not acceptance by silence (even though not possible)
What you need to figure out is whether the message is a counter-offer (which Archie never accepted--as he can't accept by silence: Felthouse v Bindley) or an acceptance of the original offer. That brings you back to a) whether the term of the offer was complied with and b) when the acceptance was received. I *think* there's post-Entores caselaw on receipt of acceptances during/outside of office hours--Zestafoni v Ronly deals with faxes, and you should probably also look at Brinkibon v Stahag Stahl.
Yup Stahag Stahl and when it can reasonably be expected to be received, i.e opening of office next morning.
Thanks very much for help- appreciated. Has given me a few new ideas to research further :-)
Thanks very much for help- appreciated. Has given me a few new ideas to research further :-)
Original post by SatinBlack
Yup Stahag Stahl and when it can reasonably be expected to be received, i.e opening of office next morning.
Thanks very much for help- appreciated. Has given me a few new ideas to research further :-)
Thanks very much for help- appreciated. Has given me a few new ideas to research further :-)
Happy to help.
Originally Posted by SatinBlack
Yup Stahag Stahl and when it can reasonably be expected to be received, i.e opening of office next morning.
Thanks very much for help- appreciated. Has given me a few new ideas to research further :-)
Surely stahag stahl would be more useful to the opposition? I was wondering how you could argue the 2nd grounds from as the appellant. We've argued as archie but are finding the second grounds as the appellant very challenging as we're only allowed to use case law!!! help would be much appreciated!!
Yup Stahag Stahl and when it can reasonably be expected to be received, i.e opening of office next morning.
Thanks very much for help- appreciated. Has given me a few new ideas to research further :-)
Surely stahag stahl would be more useful to the opposition? I was wondering how you could argue the 2nd grounds from as the appellant. We've argued as archie but are finding the second grounds as the appellant very challenging as we're only allowed to use case law!!! help would be much appreciated!!
Original post by F&A
Originally Posted by SatinBlack
Yup Stahag Stahl and when it can reasonably be expected to be received, i.e opening of office next morning.
Thanks very much for help- appreciated. Has given me a few new ideas to research further :-)
Surely stahag stahl would be more useful to the opposition? I was wondering how you could argue the 2nd grounds from as the appellant. We've argued as archie but are finding the second grounds as the appellant very challenging as we're only allowed to use case law!!! help would be much appreciated!!
Yup Stahag Stahl and when it can reasonably be expected to be received, i.e opening of office next morning.
Thanks very much for help- appreciated. Has given me a few new ideas to research further :-)
Surely stahag stahl would be more useful to the opposition? I was wondering how you could argue the 2nd grounds from as the appellant. We've argued as archie but are finding the second grounds as the appellant very challenging as we're only allowed to use case law!!! help would be much appreciated!!
To me this hinges on communication of an offer and acceptance, if that is the case then two cases immediately stick out to me Felthouse v Bingley dealing with communication (silence) and then Bryne v Van Tienhoven which deals with revocation of an offer.
Original post by vnupe
To me this hinges on communication of an offer and acceptance, if that is the case then two cases immediately stick out to me Felthouse v Bingley dealing with communication (silence) and then Bryne v Van Tienhoven which deals with revocation of an offer.
Thanks! i had one of those cases but not the other. One question that i keep wondering about is whether it could be argued that there is no condition on the time of 6pm? and so it is not a term of contract? or am i wayyy off with this?
Thank you for your help so far!! :-)
Original post by F&A
Thanks! i had one of those cases but not the other. One question that i keep wondering about is whether it could be argued that there is no condition on the time of 6pm? and so it is not a term of contract? or am i wayyy off with this?
Thank you for your help so far!! :-)
Thank you for your help so far!! :-)
I personally don't see 6 pm as a term of the contract, but then again you could construe that it could be, because the seller definitively displayed his phone number along for instructions when to call... so for my money it depends how you frame it.
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