Mooting problem......HELP!!!!!!!!!!!1

Im a bit stuck on this mooting issue, all the authorities seem be going against me. Im arguing as the Junior Respondant:

- If an offer is revoked it needs to be communicated. But can I define communicated like the judge at first instance and say that it was communicated when it was reasonably expected for her to have read it. Similar to the e-mail communicated conditions.

- Any authorities?

Drew and Lucy were long standing acquaintances who regularly had business
dealings with one another. On 1st November, Drew, from his home address in
Northampton, wrote to Lucy at her address in Bristol, offering to sell her his
customised Renault Clio motor car, (which she has long admired), for £7,000, the
offer to remain open until 5th November. On receiving the offer on 2nd November,
Lucy left Bristol on a business trip to Liverpool. On the 2nd November Drew sold the
car to Kelly and posted to Lucy a revocation of his offer. This was delivered to Lucy’s
Bristol address on 3rd November. On 4th November, Lucy posted an acceptance of
the offer from Liverpool, addressed to Drew at his business address, (which was the
address from which Drew usually conducted dealings with Lucy) in Coventry. It was
delivered there on 5th November but as Drew was absent from his office on that day,
it wasn’t read by him until 6th November. On 7th November Lucy returned home and
read the letter of revocation.

Lucy claimed that a contract had been formed between herself and Drew, in that she
had accepted the offer either on 4th November through the application of the postal
rule, or on the 5th November when the letter was delivered to Drew’s place of
business. Both events took place before the offer lapsed and before Drew’s letter of
revocation was communicated to her.

Held by Nonsuch J.:

1. that the postal rule did not operate to form a contract on 4th November, since
the acceptance was posted to the wrong address. In such a case, the postal rule
becomes displaced and the acceptance does not take place until the letter of
acceptance is received and read, (i.e. on 6th November) by which time the
offer had lapsed. The court accepted the U.S.case of Eliason v. Henshaw 4
Wheat 225, as being a correct application of principle.

2. in any case, the offer had been revoked before Lucy’s letter of acceptance had
been posted. Although the rule is that an offer is not revoked until the
revocation is communicated to the offeree, in this case ‘communicated’ meant
that the offeree should be given a reasonable time to read the letter of
revocation, once it had been delivered to the place from which the offer had
been made and at which the offeree was reasonably supposed to be present.
This, at the latest, was at the close of business on 3rd November.

Lucy is appealing against both findings

Reply 1

Dave_2004_G

McKendrick: 'Although it is clear that the revocation must be brought to the attention of the offeree it is not entirely clear when the revocation is treated as being brought to his attention. It could be when the letter reaches his business or it could be when he actually reads it. There is no clear English authority on this point, although in The Brimnes the CA held that, in the case of a notice of withdrawal of a vessel sent by telex during ordinary business hours, the withdrawal was effective when it was received on the telex machine. There was no requirement that it actuall be read by any particular person within the organisation'.

Sorry don't have time to say anything else now but hope that helps!

Reply 2

stocis

yup i agree with dave.. revocation is ur best tool

Reply 3

Dave_2004_G

You're the junior respondent right? The appellant will probably use Byrne v. Van Tienhoven as authority for the proposition that the termination must actually be brought to the attention of the offeree, so you'll have to distinguish it [although note that the case in the above post was decided after Van Tienhoven]. The problem is that telex is an instant form of communication...with letters the issue is uncertainty when posting an offer as to whether another letter has been sent revoking the original offer.

You could distinguish the Van Tienhoven in that in your cases the revocation is actually received...maybe you could say that once actually delivered, the risk should pass to the offeree to check their post and that the policy considerations which were important in Van Tienhoven aren't as pressing here.

Reply 4

lawlawlaw

Thanks for the help, so I should be trying to distinguish Van Tien Hoven and trying to apply The Brimnes and say that their principle should apply to post as well as telex.

Could it also be argued that she was taking the risk upon herself by going away without letting him know, and hence it would be unreasonable for him to bear the risk.

How about trying to apply Shuey v US, where, I know that it was with regards a unilateral contract offer, but they did state that an offer could be revoked but it must be revoked in the same method as it was made, and Drew did revoke the offer in the same way, by sending the letter, and in the normal course of business she would have opened it.

Ideas?

Reply 5

Vohamanah

Make sure if you do mention cases from other jurisdictions that you emphasise this. E.g. "Whilst accepting that this case is not binding on your Lordship, I endeavour to bring it to your attention since it is the leading authority in this area..." That way they can't flag you up on it.

Reply 6

Emmaleuk

Sorry to resurrect an old thread but does anyone have any more suggestions on this, again from the respondents perspective? I'm a first time mooter and completely lost!

Reply 7

Emmaleuk

Nobody? I'm beginning to wish i'd got the other half of this battle!

Reply 8

pcok

Emmaleuk

Nobody? I'm beginning to wish i'd got the other half of this battle!

If you can see the other side then just flip that argument.

Reply 9

digderidoo

I think the key for me is that Drew posted the letter from his home address, so the offeree must reasonably be expected to reply to the address of the offer. She posted to the acceptence to his business address, therefore it cannot be said she actually accepted the offer.