Company Law (offer and Acceptance)

INTRODUCTION

A contract may be defined as an agreement between two or more parties that is intended to be legally binding.

The first requisite of any contract is an agreement (consisting of an offer and acceptance). At least two parties are required; one of them, the offeror, makes an offer which the other, the offeree, accepts.

OFFER

An offer is an expression of willingness to contract made with the intention that it shall become binding on the offeror as soon as it is accepted by the offeree.

A genuine offer is different from what is known as an "invitation to treat", ie where a party is merely inviting offers, which he is then free to accept or reject. The following are examples of invitations to treat:

1. AUCTIONS

In an auction, the auctioneer's call for bids is an invitation to treat, a request for offers. The bids made by persons at the auction are offers, which the auctioneer can accept or reject as he chooses. Similarly, the bidder may retract his bid before it is accepted. See:

• Payne v Cave (1789) 3 Term Rep 148

2. DISPLAY OF GOODS

The display of goods with a price ticket attached in a shop window or on a supermarket shelf is not an offer to sell but an invitation for customers to make an offer to buy. See:

• Fisher v Bell [1960] 3 All ER 731

• P.S.G.B. v Boots Chemists [1953] 1 All ER 482.

3. ADVERTISEMENTS

Advertisements of goods for sale are normally interpreted as invitations to treat. See:

• Partridge v Crittenden [1968] 2 All ER 421.

However, advertisements may be construed as offers if they are unilateral, ie, open to all the world to accept (eg, offers for rewards). See:

• Carlill v Carbolic Smoke Ball Co [1893] 1 QB 256.

4. MERE STATEMENTS OF PRICE

A statement of the minimum price at which a party may be willing to sell will not amount to an offer. See:

• Harvey v Facey [1893] AC 552

• Gibson v Manchester County Council [1979] 1 All ER 972.

5. TENDERS

Where goods are advertised for sale by tender, the statement is not an offer, but an invitation to treat; that is, it is a request by the owner of the goods for offers to purchase them. The process of competitive tendering came under scrutiny in the following cases:

• Harvela Investments v Royal Trust Co. of Canada [1985] 2 All ER 966

• Blackpool Aero Club v Blackpool Borough Council [1990] 3 All ER 25.

ACCEPTANCE

An acceptance is a final and unqualified acceptance of the terms of an offer. To make a binding contract the acceptance must exactly match the offer. The offeree must accept all the terms of the offer.

However, in certain cases it is possible to have a binding contract without a matching offer and acceptance. See:

• Brogden v Metropolitan Railway Co. (1877) 2 App Cas 666

• Lord Denning in Gibson v Manchester City Council [1979] above

• Percy Trentham Ltd v Archital Luxfer Ltd [1993] 1 Lloyd's Rep 25.

The following rules have been developed by the courts with regard to acceptance:

1. COUNTER OFFERS

If in his reply to an offer, the offeree introduces a new term or varies the terms of the offer, then that reply cannot amount to an acceptance. Instead, the reply is treated as a "counter offer", which the original offeror is free to accept or reject. A counter-offer also amounts to a rejection of the original offer which cannot then be subsequently accepted. See:

• Hyde v Wrench (1840) 3 Beav 334.

A counter-offer should be distinguished from a mere request for information. See:

• Stevenson v McLean (1880) 5 QBD 346.

If A makes an offer on his standard document and B accepts on on a document containing his conflicting standard terms, a contract will be made on B's terms if A acts upon B's communication, eg by delivering goods. This situation is known as the "battle of the forms". See: