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    I need help on the following scenario:-

    Marathon Ltd is the owner of a local swimming pool in Liverpool. They place an advertisement on their website stating the following:
    'Pay for a 6 month subscription and swim 40 consecutive lengths by 24th April and you will receive a free subcription for a family member or friend!'

    However, the swimming pool has to be closed immediately due to contamination on 22nd April and Marathon Ltd place a notice straight away on its webiste cancelling the promotion.

    Advise the following parties:
    1. Sally received a free subcription on 20th April. She swam 40 lengths but was refused free subscription as she did not pay for her own.
    2. Tom paid for his 6-month subscription at the local pool on 21st April but noticed the revocation the following day. He tried to swim 40 lengths but could only complete 30.
    3. Polly applied for a subscription on the morning of 24th April. Before setting off to attempt 40 lengths, the lifeguard told her about the revocation.

    Is the advert an offer or invitation to treat? How would I go about answering this?
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    There's a lot more to this than offers vs. invitation to treat

    You do need to consider whether the advert itself is a Carlill-style contract, yes, but there is another option. When you pay for a subscription, that is most definitely a contract. If the terms of the advert are incorporated into that contract, they are a term of that contract - so consider incorporation.

    You should also consider whether the advert might be a representation, entitling people who buy a membership to claim for misrepresentation (though don't go overboard with this line of analysis)

    Regarding 1, there are two issues. 1) Does Sally meet with the terms of the advert (i.e. does the wording of the advert include people like Sally in the first place?). 2) If so, then does Sally have a contract with the swimming pool? If the advert is an offer, it looks like she does; but if we are relying on the advert being incorporated into the main contract, then she does not have a contract with the pool and she has a privity problem.
    You'll also need to think about damages. Note that the subscription is being given to another person. That other person has a privity problem if they want to claim damages. But Sally/Tom/Polly have assessment problems because the loss accrues to the third party who would have got the contract, Sally/Tom/Polly don't obviously suffer loss themselves. You need to either find a loss suffered by Sally/Tom/Polly themselves (e.g. their kid can't attend the pool so they have less fun and claim damages for that) or you need to get around the privity problem by reference to CROPTA.

    Regarding 2, fairly simple issue of whether the advert can be revoked and, if so, whether the particular revocation of posting a notice on the website is effective. Whether the ad can be revoked will differ depending on if you are relying on the advert being a Carlill style offer (can be revoked if performance hasn't started) or whether it is a term of the main contract (the swimming pool cannot unilaterally change an existing contract) If so, then think about how Tom's damages might be assessed - will it be assessed on the basis that Tom would have completed 40 lengths or on the lower basis of a chance to complete 40 lengths?

    Regarding 3, the question doesn't make clear whether Polly paid. If she didn't (but only promised to pay), then does she come within the terms of the advert? And as with 2, there is an issue with whether the advert can be revoked. If the advert can't be revoked or is a term of the main contract, then you need to think about what Polly's options are. She might want to cancel her application - this is termination, and she will need to show that there has been a breach of a condition or a serious breach of an innominate term. This looks like an innominate term, and you'll need to think about whether that breach is serious enough to entitle Polly to terminate. You'll also need to think about how Polly's damages will be assessed (similar issue with 2, but we have no idea as to whether Polly could even swim 10 lenghts let alone 40).

    There's also potential frustration because of the contamination.

    All in all, there a lot of different issues spanning almost the entire course. You probably won't know these issues in detail especially if you haven't studied them, but worth bearing them in mind. Obviously you don't have that much scope for going into lots of detail on one particular point given that there is so much to cover.

    Shout if you don't understand something, I probably haven't been that clear
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    (Original post by jacketpotato)
    There's a lot more to this than offers vs. invitation to treat

    You do need to consider whether the advert itself is a Carlill-style contract, yes, but there is another option. When you pay for a subscription, that is most definitely a contract. If the terms of the advert are incorporated into that contract, they are a term of that contract - so consider incorporation.

    You should also consider whether the advert might be a representation, entitling people who buy a membership to claim for misrepresentation (though don't go overboard with this line of analysis)

    Regarding 1, there are two issues. 1) Does Sally meet with the terms of the advert (i.e. does the wording of the advert include people like Sally in the first place?). 2) If so, then does Sally have a contract with the swimming pool? If the advert is an offer, it looks like she does; but if we are relying on the advert being incorporated into the main contract, then she does not have a contract with the pool and she has a privity problem.
    You'll also need to think about damages. Note that the subscription is being given to another person. That other person has a privity problem if they want to claim damages. But Sally/Tom/Polly have assessment problems because the loss accrues to the third party who would have got the contract, Sally/Tom/Polly don't obviously suffer loss themselves. You need to either find a loss suffered by Sally/Tom/Polly themselves (e.g. their kid can't attend the pool so they have less fun and claim damages for that) or you need to get around the privity problem by reference to CROPTA.

    Regarding 2, fairly simple issue of whether the advert can be revoked and, if so, whether the particular revocation of posting a notice on the website is effective. Whether the ad can be revoked will differ depending on if you are relying on the advert being a Carlill style offer (can be revoked if performance hasn't started) or whether it is a term of the main contract (the swimming pool cannot unilaterally change an existing contract) If so, then think about how Tom's damages might be assessed - will it be assessed on the basis that Tom would have completed 40 lengths or on the lower basis of a chance to complete 40 lengths?

    Regarding 3, the question doesn't make clear whether Polly paid. If she didn't (but only promised to pay), then does she come within the terms of the advert? And as with 2, there is an issue with whether the advert can be revoked. If the advert can't be revoked or is a term of the main contract, then you need to think about what Polly's options are. She might want to cancel her application - this is termination, and she will need to show that there has been a breach of a condition or a serious breach of an innominate term. This looks like an innominate term, and you'll need to think about whether that breach is serious enough to entitle Polly to terminate. You'll also need to think about how Polly's damages will be assessed (similar issue with 2, but we have no idea as to whether Polly could even swim 10 lenghts let alone 40).

    There's also potential frustration because of the contamination.

    All in all, there a lot of different issues spanning almost the entire course. You probably won't know these issues in detail especially if you haven't studied them, but worth bearing them in mind. Obviously you don't have that much scope for going into lots of detail on one particular point given that there is so much to cover.

    Shout if you don't understand something, I probably haven't been that clear
    Thanks for the detailed response! Do you know what cases I could refer to in each scenario other than Carbolic Smoke Ball Co?
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    (Original post by ShabzM)
    Thanks for the detailed response! Do you know what cases I could refer to in each scenario other than Carbolic Smoke Ball Co?
    Not really, don't remember too many cases. Though its difficult to think of a situation where interpretation is relevant and you don't mention the Hoff in the West Bromwich Investors case.
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    (Original post by jacketpotato)
    Not really, don't remember too many cases. Though its difficult to think of a situation where interpretation is relevant and you don't mention the Hoff in the West Bromwich Investors case.
    No worries, I ended up finding quite a few cases but need help on the potential remedies for these parties. Which remedies would be applicable here?
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    (Original post by ShabzM)
    No worries, I ended up finding quite a few cases but need help on the potential remedies for these parties. Which remedies would be applicable here?
    Advise the following parties:
    1. Sally received a free subcription on 20th April. She swam 40 lengths but was refused free subscription as she did not pay for her own.
    2. Tom paid for his 6-month subscription at the local pool on 21st April but noticed the revocation the following day. He tried to swim 40 lengths but could only complete 30.
    3. Polly applied for a subscription on the morning of 24th April. Before setting off to attempt 40 lengths, the lifeguard told her about the revocation.

    The vanilla measure of damages is the loss of amenity due to not being able to bring a friend.

    Starts getting more complicated if the parties want to terminate their subscription in which case you need to think about whether the term (if it is a term) is a condition, innominate term or a warranty, and if it is an IT whether this is a fundamental breach. Also worth thinking about whether the claimants can get their reliance loss (i.e. a refund in the case of Polly).
 
 
 
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