This discussion is now closed.

Check out other Related discussions

something i dont quite understand-fisher V bell-contract law

it was held that the shop keeper wasnt guilty as the flick knife was an invitation to treat and not an offer to sell... but WHAT is the point of having an 'invitation to treat?' the SOLE purpose is to sell it right? its not like the flick knife is there for decoration? what is the answer behind this?

Reply 1

Lauren18

14

Look at offer and acceptance - what is the significance of an offer (as opposed to an ITT)?

Reply 2

chocmonster

1

invitation to treat is important because if every item in the window of a shop was held to be an offer, then a consumer who picked up the item would be effectievly accepting the offer. there would be problems if the shop only had limited supply etc and more people wanted to accept the 'offer'.

:biggrin:

Reply 3

domjohn

An invitation to treat invites offers, whereas an offer invites acceptances. An invitation to treat invites one more step into the 'offer and acceptance' process to prevent people being bound into a contract they may not want to be in.

Reply 4

P1mP

1

chocmonster

invitation to treat is important because if every item in the window of a shop was held to be an offer, then a consumer who picked up the item would be effectievly accepting the offer. there would be problems if the shop only had limited supply etc and more people wanted to accept the 'offer'.
:biggrin:

I was just about to say that. ALso, look at the case of British pharmeceutical industry v (i think it was boots?) that gives a better explanation

Reply 5

litispendence

1

An invitation to treat is an invitation to negotiate. The person cannot walk into the shop and claim that they have the right to accept the offer of the flick knife. The shopkeeper has the right to refuse sale, therefore the shopper must come into the shop and offer to buy the product by handing over money, which can then be accepted by the shopkeeper.

I can understand the principles used in the Fisher v Bell case, although I have to admit, I think the outcome was wrong. Shopkeepers should not be encouraged to display illegal products in the window, whether they would refuse accept an offer to sell or not.

Take a look at the case that someone else mentioned - Pharmaceutical Society of Great Britain v Boots Cash Chemists 1953. That might clarify it for you. Also, it may be worth looking at Grainger v Gough 1896 and Partridge v Crittenden 1968, slightly different circumstances but similar principles used.

I really recommend the McKendrick textbook for explaining concepts like this.

Hope this helps. :smile:

Reply 6

Onearmedbandit

17

I did my moot on this, so I'm gutted that I can't look smart and answer 'cos everyone else has already :frown:

Reply 7

manthi

7

LucyMP

An invitation to treat is an invitation to negotiate. The person cannot walk into the shop and claim that they have the right to accept the offer of the flick knife. The shopkeeper has the right to refuse sale, therefore the shopper must come into the shop and offer to buy the product by handing over money, which can then be accepted by the shopkeeper.

I can understand the principles used in the Fisher v Bell case, although I have to admit, I think the outcome was wrong. Shopkeepers should not be encouraged to display illegal products in the window, whether they would refuse accept an offer to sell or not.

Take a look at the case that someone else mentioned - Pharmaceutical Society of Great Britain v Boots Cash Chemists 1953. That might clarify it for you. Also, it may be worth looking at Grainger v Gough 1896 and Partridge v Crittenden 1968, slightly different circumstances but similar principles used.

I really recommend the McKendrick textbook for explaining concepts like this.

Hope this helps. :smile:

The outcome may have apparently defeated the purpose of the parliament in passing the Restriction of Offensive Weapons Act 1959, yet, the court had to use the literal rule in interpreting this statute. And under the literal rule, the ordinary and natural meaning should be taken, and so this was not an offer but merely an invitation to treat. Although it sets a bad example, as you said 'Shopkeepers should not be encouraged to display illegal products in the window, whether they would refuse accept an offer to sell or not', there was no choice in the matter. The court has to merely apply what the parliament enacts and cannot 'create' law legitimately; it was the parliaments fault for not enacting a proper statute.

Reply 8

PDJM

4

What has just been delivered in the traditional English approach to such matters, it is not the only way of dealing with the problem. I find it somewhat unfortunate that often the reasons behind such decisions are applied as dogma. The argument that it should not be an offer (as with the Boots case) since the customer would not be able to change his mind should not lead to this conclusion since we can simply push back the acceptance of this offer to a later time (ie when the item is placed at the cash desk). The argument that such a system means that the seller is able to reserve the right to sell the goods in question could be dealt with by an implied term in the offer. This is not to say this is the correct approach -merely the issues raised in the cases do not automatically lead to the solution adopted by English law.

Another approach is adopted by the French law on such matters- they too deal with the same issues albeit from another angle. Under French Law and article in a shop window is considered an offer, however when an article is part of an artistic display the price of the object is not an offer; also if the price is not indicated it constitutes no more than an invitation to deal. As for the Boots Cash Chemist example, self service systems are considered an offer (note the famed Exploding Lemonade bottle case)- the contract being made when the item is taken off the shelf and placed in the receptacle, this does however require some form of implied term to allow a change of mind. One may suggest that this case was decided with the result in mind (the person was injured by the bottle and French contract law provided a better claim than tort, issues re cause etrangere etc).

This solution also creates problems- take for example a thief in the shop who places the object in their basket and only afterwards decides to steal it, if the contract is complete and property has passed there is no theft! Thus however can be dealt with by an implied reservation of title clause until payment.

I am not suggesting that French law is superior in this respect to English law, however, I am merely showing that the reasons outlined in the English caselaw do not necessarily lead to the English solution- the same problems can be adequately dealt with even if the display (whether in the window on or a shelf) is considered an offer rather than invitations to treat.

Reply 9

litispendence

1

manthi

The outcome may have apparently defeated the purpose of the parliament in passing the Restriction of Offensive Weapons Act 1959, yet, the court had to use the literal rule in interpreting this statute. And under the literal rule, the ordinary and natural meaning should be taken, and so this was not an offer but merely an invitation to treat. Although it sets a bad example, as you said 'Shopkeepers should not be encouraged to display illegal products in the window, whether they would refuse accept an offer to sell or not', there was no choice in the matter. The court has to merely apply what the parliament enacts and cannot 'create' law legitimately; it was the parliaments fault for not enacting a proper statute.

I never implied otherwise. I just prefer a purposivist approach to the law.

Reply 10

qqlady

OP

1

LucyMP

An invitation to treat is an invitation to negotiate. The person cannot walk into the shop and claim that they have the right to accept the offer of the flick knife. The shopkeeper has the right to refuse sale, therefore the shopper must come into the shop and offer to buy the product by handing over money, which can then be accepted by the shopkeeper.

I can understand the principles used in the Fisher v Bell case, although I have to admit, I think the outcome was wrong. Shopkeepers should not be encouraged to display illegal products in the window, whether they would refuse accept an offer to sell or not.

Take a look at the case that someone else mentioned - Pharmaceutical Society of Great Britain v Boots Cash Chemists 1953. That might clarify it for you. Also, it may be worth looking at Grainger v Gough 1896 and Partridge v Crittenden 1968, slightly different circumstances but similar principles used.

I really recommend the McKendrick textbook for explaining concepts like this.

Hope this helps. :smile:

THANKS! to all of u for posting ur answers up it really helps! and this one was particuarly useful! i understand that an invitaition to treat is an an invitation to negotiate but what im saying is that what is the point of negotiating whether to sell or not IF IT IS ILLEGAL anyway to sell items such as flick knives? under the dangerous weapons act...or something act..it is illegal right? so ... why would it be an invitation to treat? is this where we say law is law and separate from morals? the case just doesnt seem to make sense in this way?

Reply 11

house badger

7

Try thinking about it in two separate ways. First, as the court applying the rules of offer and acceptance in a clear and logical way. This is important as otherwise we would end up with doctrinal confusion at a really fundamental point of contract law. From this perspective the decision is in my view a good one.

Secondly, the public policy/moral question about the statute preventing the sale of flick-knives. This is a less fundamental question and could be answered many ways. The court went for the literal application of the statute. They could perhaps have interpreted it more purposively (courts aren't bound to a litteral interpretation as someone said earlier, there's plenty of cases that state otherwise), whereby they interpreted the act as applying to both sales and invitations to treat. This might better fulfil Parliament's policy objectives but could create rule of law questions about retrospective lawmaking. If only sale is prohibited how can you convict for an act short of sale? This could get quite messy so perhaps the literal application of the statute was, in the long run, better, despite there being an apparently unjust result in future cases. A court's decision doesn't prevent Parliament creating new legislation about the display of flick-knives in shops, at worst this decision will affect how police gather evidence about shops with flick-knives (i.e. they will need evidence of a sale taking place or having taken place for a successful prosecution). As I said, on the second part there is a lot of room for debate and it is after all not that important to the question at hand.

qqlady

THANKS! to all of u for posting ur answers up it really helps! and this one was particuarly useful! i understand that an invitaition to treat is an an invitation to negotiate but what im saying is that what is the point of negotiating whether to sell or not IF IT IS ILLEGAL anyway to sell items such as flick knives? under the dangerous weapons act...or something act..it is illegal right? so ... why would it be an invitation to treat? is this where we say law is law and separate from morals? the case just doesnt seem to make sense in this way?

Reply 12

litispendence

1

qqlady

what is the point of negotiating whether to sell or not IF IT IS ILLEGAL anyway to sell items such as flick knives?

Because if there is an invitation to treat, the shopkeeper can refuse to sell. Therefore he is not "offering" it for sale, and can't be prosecuted.

Reply 13

qqlady

OP

1

LucyMP

Because if there is an invitation to treat, the shopkeeper can refuse to sell. Therefore he is not "offering" it for sale, and can't be prosecuted.

if he isnt offering it for sale..whats the point of putting it there in the first place? can you see it doesnt quite add up? i understand the principle..just the reason of putting the flick knife in the window just seems a bit silly if he cant sell it at the end of the day anyway. To you and me both or to any 3rd party...anyone using their common sense would know that he is putting it there for the sole purpose of selling it..just he is sticking rigidly to the law and saying no..its an invitation to treat so im not prosecuted right?

Reply 14

K Abraham

1

Onearmedbandit

I did my moot on this, so I'm gutted that I can't look smart and answer 'cos everyone else has already :frown:

#

Yup, same here!!!

But I think during the moot my arguments somewhat backfired on me!
LOL!!!!! Anyway, I don;t blame myself for loosing the competition since I am a first year GDL part time student who was up against 2nd year full time LLB students. and my mooting partner only rarely spoke in good english!!! never mind law... :frown:

Reply 15

K Abraham

1

Invitations to treat, are in my opinion, merely a reserve get out clause that businessmen use to avoid contractual liabilities. Any product that is placed in a shop window should also be in store for the same price and should be available as an offer to the customer. To say to the customer no you can't buy this because what you saw in the shop window was simply an invitation to treat is nonsense. Its one thing to be out of stock and quite another to be in stock and yet unwilling to sell the product.

Reply 16

Debbie.perry35

1

Does this also apply if a customer went to a shop to purchase a flick knife but the owner said that there is no more in stock and to come back in a week once they are in stock again but when the customer went back a week later he got told that they cannot sell him the flick knife as this type was prohibited in the uk..The customer says that the owner must honour the flick knife as their contract was to sell and deliver the knife...any assistance or guidance would be appreciated.

something i dont quite understand-fisher V bell-contract law

Related discussions

Articles for you