some 1 help pleasee...contract law question?!!
what can i say about Rose not reading Jacks email on time???
(edited 12 years ago)
Have you read the cases of Entores Ltd vs Miles Far East Corporation, Brinkibon, Brimnes? These all deal with communication by telex but the position may well be the same with regard to email communication.
There is no English case on this to my knowledge so you will want to consider all possibilities - acceptance communicated immediately (postal rule), when read (usual rule on offeror having to receive the acceptance), or *when it could reasonably be expected to be read* (obiter dicta in Brimnes case).
The latter can probably be dismissed out of hand because although Jack emails Rose's *at her business* the email itself is for her in a personal capacity.
There is no English case on this to my knowledge so you will want to consider all possibilities - acceptance communicated immediately (postal rule), when read (usual rule on offeror having to receive the acceptance), or *when it could reasonably be expected to be read* (obiter dicta in Brimnes case).
The latter can probably be dismissed out of hand because although Jack emails Rose's *at her business* the email itself is for her in a personal capacity.
There might be a further point that the offer from Rose to sell to Jack has impliedly lapsed because of passage of time by Monday morning. Presumably Rose cannot be expected to hold on to the bracelet forever pending Jack getting back to her.
The 'lapse of time' cases I'm aware of are dealing with larger time periods than 6 days as here, but I think that given the subject matter - a small item advertised for sale in a local newspaper, an offer to sell could be held to lapse quite quickly?
The 'lapse of time' cases I'm aware of are dealing with larger time periods than 6 days as here, but I think that given the subject matter - a small item advertised for sale in a local newspaper, an offer to sell could be held to lapse quite quickly?
yes but shouldnt have Rose looked for Jacks email?? as he took it off her and told her he will get back??...
and in Chwee Kin Keong v Digilandmall.com pte ltd 2004 it states that the acceptance would be effective the movement the offer enters that node of the network outside the control of the originatior\??...does this mean that even though Rose hasnt seen the email...there is still an offer??...espiciall because it was sent on friday 4th...even before the auction started??..i dont have any cases to support tho??
and in Chwee Kin Keong v Digilandmall.com pte ltd 2004 it states that the acceptance would be effective the movement the offer enters that node of the network outside the control of the originatior\??...does this mean that even though Rose hasnt seen the email...there is still an offer??...espiciall because it was sent on friday 4th...even before the auction started??..i dont have any cases to support tho??
I think we could distinguish this case on several grounds:
a) This communication is a personal one unrelated to Rose's work. It is not as though Jack sent communication to a fax machine or email address where email will be monitored by a secretary, receptionist, etc at all times during business hours. I suggest that the rule in the Digilandmall.com case is more appropriate where the communication is part of the 'ordinary course of dealing' of the email/IP address to which it is sent. This is essentially what is being said in the obiter dicta in the Brimnes case as well. In that case it was expected that the receptionist would notice the fax within a matter of moments as indeed she was employed to do so.
b) The process in the digiland case was somewhat more 'automated'. The customer placed an order for a laser printer and received an automated acknowledgement shortly thereafter, with an order automatically being created in digilandmall's system.
c) The judgment in digiland actually states: "In accordance with s 15(1) of the ETA, acceptance would be effective the moment the offer enters that node of the network outside the control of the originator. There are, however, other sound reasons to argue against such a rule in favour of the recipient rule", and Rajah JC goes on to state in any case "In the absence of proper and full arguments on the issue of which rule is to be preferred, I do not think it is appropriate for me to give any definitive views in these proceedings on this very important issue."
d) There ought to be a big difference between wholesalers of printers and sellers of a single camper van. In the former case, barring mistakes such as what actually happened, the wholesalers envisage being able to meet any such orders for merchandise that come in. Furthermore, they may have systems in place to monitor their stock based on what has been ordered and remove such articles from their website as have been 'sold out'. In the latter case, the seller clearly only has one such camper van, and so anything that might lead to her potentially selling an arbitrarily large number of vans that she doesn't have should be looked at skeptically
e) In the absence of any clear authority, you might like to consider who it is fairer should 'bear the risk' of this type of thing happening. Is it more reasonable that Rose should be liable for breach of contract because she didn't check her email in the last few minutes before she left for work, or is it more reasonable that Jack should not be able to buy a camper van? Note that Jack could easily have confirmed his order by simply calling Rose as he had done previously (and in the real world rather than the stilted world of law problem questions, surely he would have done)?
In the final analysis your view may be correct but hopefully those are some things that you can consider whether or not are relevant to your essay.
(note that I'm only a 1st year law student as well so you have as much chance of being right as I do !)
a) This communication is a personal one unrelated to Rose's work. It is not as though Jack sent communication to a fax machine or email address where email will be monitored by a secretary, receptionist, etc at all times during business hours. I suggest that the rule in the Digilandmall.com case is more appropriate where the communication is part of the 'ordinary course of dealing' of the email/IP address to which it is sent. This is essentially what is being said in the obiter dicta in the Brimnes case as well. In that case it was expected that the receptionist would notice the fax within a matter of moments as indeed she was employed to do so.
b) The process in the digiland case was somewhat more 'automated'. The customer placed an order for a laser printer and received an automated acknowledgement shortly thereafter, with an order automatically being created in digilandmall's system.
c) The judgment in digiland actually states: "In accordance with s 15(1) of the ETA, acceptance would be effective the moment the offer enters that node of the network outside the control of the originator. There are, however, other sound reasons to argue against such a rule in favour of the recipient rule", and Rajah JC goes on to state in any case "In the absence of proper and full arguments on the issue of which rule is to be preferred, I do not think it is appropriate for me to give any definitive views in these proceedings on this very important issue."
d) There ought to be a big difference between wholesalers of printers and sellers of a single camper van. In the former case, barring mistakes such as what actually happened, the wholesalers envisage being able to meet any such orders for merchandise that come in. Furthermore, they may have systems in place to monitor their stock based on what has been ordered and remove such articles from their website as have been 'sold out'. In the latter case, the seller clearly only has one such camper van, and so anything that might lead to her potentially selling an arbitrarily large number of vans that she doesn't have should be looked at skeptically
e) In the absence of any clear authority, you might like to consider who it is fairer should 'bear the risk' of this type of thing happening. Is it more reasonable that Rose should be liable for breach of contract because she didn't check her email in the last few minutes before she left for work, or is it more reasonable that Jack should not be able to buy a camper van? Note that Jack could easily have confirmed his order by simply calling Rose as he had done previously (and in the real world rather than the stilted world of law problem questions, surely he would have done)?
In the final analysis your view may be correct but hopefully those are some things that you can consider whether or not are relevant to your essay.
(note that I'm only a 1st year law student as well so you have as much chance of being right as I do !)
(edited 12 years ago)
So you're taking the view that Jack's email is an offer rather than an acceptance, and that all the discussions prior to that where 'chaffering about terms'? I suppose that could be tenable, my view was that when Rose said "I can't take any less than £1000 I'm afraid" that was a definite indication that if Jack had said "Ok I'll pay £1,000" the parties would have considered their bargaining at an end and a deal made (hence that statement was an offer).
Sorry I'm confused, I don't really understand what you mean.
If Rose's comment that she cannot take less than £1,000 for the bracelet is an offer, then Jack's email is a purported acceptance. If Rose's comment that she cannot take less than £1,000 for the bracelet is just 'discussing terms' then Jack's email is an offer.
I somewhat doubt the question intended you to take the latter view but it seems tenable. If you do take the latter view then clearly Jack's offer has not been accepted by Rose as there is nothing in the question indicating that she replied to it at all.
On either view there is nothing 'unilateral' here, a unilateral contract is one which can be 'accepted' by completing the terms of the contract, without otherwise signifying acceptance.
If Rose's comment that she cannot take less than £1,000 for the bracelet is an offer, then Jack's email is a purported acceptance. If Rose's comment that she cannot take less than £1,000 for the bracelet is just 'discussing terms' then Jack's email is an offer.
I somewhat doubt the question intended you to take the latter view but it seems tenable. If you do take the latter view then clearly Jack's offer has not been accepted by Rose as there is nothing in the question indicating that she replied to it at all.
On either view there is nothing 'unilateral' here, a unilateral contract is one which can be 'accepted' by completing the terms of the contract, without otherwise signifying acceptance.
For Sale; One lucky charm bracelet. 24 Carat Gold. Weight approximately 14 ounces. Mint condition. Will accept £1000. Call 0123 456 789 for more details.
i thought that the advertisement made in the newspaper is a uniteral form of offer!!...and not an invitation to treat...carlil v carbolic case
i thought that the advertisement made in the newspaper is a uniteral form of offer!!...and not an invitation to treat...carlil v carbolic case
It is not a unilateral offer. Here is a unilateral offer:
"ADVERT: I lost my dog. Bring him to me and I will give you my 24 carat gold lucky charm bracelet".
There is a *task* that must be performed. Here, bringing me the dog. In Carlill, buying one of my smoke balls and then catching flu. I suppose you could word a sale as a unilateral offer:
"Send me £1,000 through the post in a self-addressed envelope and I will send you a 24 carat gold lucky charm bracelet by return of post"
Here the task is simply to send £1,000 through the post in a self-addressed envelope. When it's performed a contract is created. I can honestly say I have never seen a case or problem question where this has been done.
A sale is almost always a bilateral contract. "I will sell you my bracelet for £1,000" - offer. "I will buy your bracelet for £1,000" - acceptance. A contract is now created. *Both parties have made a promise to the other* - one to supply a bracelet, the other to supply £1,000, even though no money may yet have changed hands.
You see how that differs from the examples above. In a unilateral contract, only one side makes a promise, and the other side 'accepts' by simply performing the terms.
a) If you find my dog, I will give you a bracelet - the other party doesn't need to *promise* to find a dog, they need to actually do it. Promising to do it is neither here nor there. It is obvious that anything else would be problematic, I cannot be expected to write to the advertiser stating "I accept your offer - if I see your dog I will bring it to you".
b) If you buy a smoke ball and catch flu, you get £100 - the other party doesn't need to promise that they will buy a smoke ball and try and catch flu, they just need to do it.
"ADVERT: I lost my dog. Bring him to me and I will give you my 24 carat gold lucky charm bracelet".
There is a *task* that must be performed. Here, bringing me the dog. In Carlill, buying one of my smoke balls and then catching flu. I suppose you could word a sale as a unilateral offer:
"Send me £1,000 through the post in a self-addressed envelope and I will send you a 24 carat gold lucky charm bracelet by return of post"
Here the task is simply to send £1,000 through the post in a self-addressed envelope. When it's performed a contract is created. I can honestly say I have never seen a case or problem question where this has been done.
A sale is almost always a bilateral contract. "I will sell you my bracelet for £1,000" - offer. "I will buy your bracelet for £1,000" - acceptance. A contract is now created. *Both parties have made a promise to the other* - one to supply a bracelet, the other to supply £1,000, even though no money may yet have changed hands.
You see how that differs from the examples above. In a unilateral contract, only one side makes a promise, and the other side 'accepts' by simply performing the terms.
a) If you find my dog, I will give you a bracelet - the other party doesn't need to *promise* to find a dog, they need to actually do it. Promising to do it is neither here nor there. It is obvious that anything else would be problematic, I cannot be expected to write to the advertiser stating "I accept your offer - if I see your dog I will bring it to you".
b) If you buy a smoke ball and catch flu, you get £100 - the other party doesn't need to promise that they will buy a smoke ball and try and catch flu, they just need to do it.
(edited 12 years ago)
is it a bilateral contract but an offer?...or does bilateral contracts have to be invitation to treat..?? "will accept 1000 pounds shows that it is an offer..as 'An offer is a specific and definite proposition showing the offeror's clear intention to be bound. An invitation to treat is an invitation to enter into further negotiations'
i feel that it is strictly an offer at start as she doesnt want ne less than 1000 pounds but laters on at the auctions it is changed into invitations to treat as she doesnt put a reserve on it??
i feel that it is strictly an offer at start as she doesnt want ne less than 1000 pounds but laters on at the auctions it is changed into invitations to treat as she doesnt put a reserve on it??
Don't get caught up thinking too much about unilateral/bilateral contracts too much. Almost all contracts you will ever come across are bilateral, so is this one. Unilateral contracts only appear when someone has to perform some task to receive some reward. There are many examples such as 'finding a lost dog', 'giving information that leads to the capture of a criminal', 'swimming 100 yards in Sydney Harbour on New Years Day', 'buying a smoke ball and subsequently catching flu'. The difference being that performing the condition *is* the acceptance of the contract.
Adverts for goods for sale by private persons or shopkeepers are nearly always invitations to treat. I can't remember a single example to the contrary. There is even an obiter dicta in Fisher vs Bell that says something like 'Even if the sign in the window said "Pocketwatch for sale for £1. Absolutely guaranteed to the first comer to put the cash down"' that is still an invitation to treat, the shopkeeper can decide whether he wants to deal with the person who is the first comer or not. The situation might be different if Rose was in the business of a wholesale seller of bracelets, but she isn't, so don't worry about it.
For auctions there are two possibilities, depending whether auction is with or without reserve:
Auction without reserve - the sale is an invitation to treat, the bids are offers, each higher bid impliedly revokes the earlier bids, the auctioneer accepts the current offer by bashing his hammer.
Auction with reserve - same as above except there is also a unilateral offer from the auctioneer that he will enter a contract for the sale of goods with the highest bidder.
Will read essay later have to go now
Adverts for goods for sale by private persons or shopkeepers are nearly always invitations to treat. I can't remember a single example to the contrary. There is even an obiter dicta in Fisher vs Bell that says something like 'Even if the sign in the window said "Pocketwatch for sale for £1. Absolutely guaranteed to the first comer to put the cash down"' that is still an invitation to treat, the shopkeeper can decide whether he wants to deal with the person who is the first comer or not. The situation might be different if Rose was in the business of a wholesale seller of bracelets, but she isn't, so don't worry about it.
For auctions there are two possibilities, depending whether auction is with or without reserve:
Auction without reserve - the sale is an invitation to treat, the bids are offers, each higher bid impliedly revokes the earlier bids, the auctioneer accepts the current offer by bashing his hammer.
Auction with reserve - same as above except there is also a unilateral offer from the auctioneer that he will enter a contract for the sale of goods with the highest bidder.
Will read essay later have to go now
Original post by jphilip2
awww bless you
...thank you soo mch for the replies...yeh..im nt gnna concentrate tooo mch abt the unilateral and bilateral crap!!
oh n ye...jst read it wenevea yuh can...im making some changes now...nd i ll send you the final 1...ignore the 1z dat i send before xx
...thank you soo mch for the replies...yeh..im nt gnna concentrate tooo mch abt the unilateral and bilateral crap!!oh n ye...jst read it wenevea yuh can...im making some changes now...nd i ll send you the final 1...ignore the 1z dat i send before xx
Seriously? You are a law student?!
Original post by Winning
Seriously? You are a law student?!
yes...why??
Original post by jphilip2
huh?..y?
Because of the way you talk. Law is usually associated with a certain level of eloquence - you don't display any. Now I obviously don't know how you talk in real life but most law students and lawyers are also quite good when it comes to the written word.
Furthermore your question was incredibly easy. I'm a german law student and only take a few courses in english law for fun and even I could answer it in a splitsecond. Now obviously you're not the only one who sometimes gets stuck at a seemingly 'easy' question - it happens to me too from time to time - but if I look at the picture as a whole you simply don't seem like a 'typical law-student', no offence.
Original post by Winning
Because of the way you talk. Law is usually associated with a certain level of eloquence - you don't display any. Now I obviously don't know how you talk in real life but most law students and lawyers are also quite good when it comes to the written word.
Furthermore your question was incredibly easy. I'm a german law student and only take a few courses in english law for fun and even I could answer it in a splitsecond. Now obviously you're not the only one who sometimes gets stuck at a seemingly 'easy' question - it happens to me too from time to time - but if I look at the picture as a whole you simply don't seem like a 'typical law-student', no offence.
Furthermore your question was incredibly easy. I'm a german law student and only take a few courses in english law for fun and even I could answer it in a splitsecond. Now obviously you're not the only one who sometimes gets stuck at a seemingly 'easy' question - it happens to me too from time to time - but if I look at the picture as a whole you simply don't seem like a 'typical law-student', no offence.
offended!!....i am only a first yr student...and if it was because of the way i typed....didnt think someone would be finding it as big deal..!!..jst to clarify..i dont tlk like that in real?...because i dont spell every single word!..get over it!it was just a quick reply!..and just because you check with people whether what you doing is right or not...it doesnt really mean you are thick!!..i dnt think!
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