Offer and Acceptance
Mr. Benitez placed the following advert in his local newspaper: “Offer for sale, 22 sets of (a certain football team’s) football strip. Only 22 left, I will definitely sell to the first party who accepts this offer for £440, by 9am Wednesday morning”.
a) Consider and apply the law as to whether this is an offer in law, or only an invitation to treat. Give reasons for your answer.
With regards to whether a newspaper advertisement is an offer in law, or an invitation to treat, case law directs us to Partridge vs. Crittenden (1968). Here, Partridge placed an advertisement in a local paper, offering rare birds for sale. The RSPCA brought a court action against Partridge charging Partridge with ‘offering’ a wild bird for sale, which was contrary to the Protection of Birds Act 1954. It was held by the court that he could not be guilty of offering the bird for sale, as the advert amounted to no more than an invitation to treat. However, this was because the advert offered no specific method for a potential buyer to make acceptance, and there would be no consideration on the buyer’s part.
However, Carlill vs. Carbolic Smoke Ball Co (1891) set an entirely different precedent for newspaper advertisements. In this case, an advert by the Carbolic Smoke Ball Co stated that a £100 reward would be paid by to any person who contracted influenza, colds, or any diseases caused by taking cold, after having used the smoke ball daily for two weeks according to the printed directions supplied with each ball. In an attempt to avoid catching the illness, Ms Carlill bought a Smoke Ball as advertised, used it according to instructions and promptly caught influenza. In this case, it was held that there was a binding contract between the two parties, as Carbolic Smoke Ball Co had made an offer to the whole world, with specific terms for acceptance, and had deposited £1000 in a bank as a show of good faith. The consideration on Ms Carlill’s part was held to have come from her using the ball according to the instructions provided.
Thus, in the case of Benitez’s advert, it is arguably an offer, as it lays out specific terms of acceptance, and states that it is only available to a member of a specific class: whoever reads the local paper, and is first to reply to the advert. Indeed, being first to reply, and guaranteeing to pay £440 could be held to be providing consideration. There could be confusion over who is first to reply to the advertisement, as there is only one strip, and the postal rule would apply (see below). At first sight, I would be tempted to conclude that this is an offer, as is open to acceptance, shows willingness to be bound on specific terms, £440 by 9am Wednesday, is certain, and can only be accepted by a reader of the paper, or someone whom a reader informs. However, given that Mr Benitez has not specified how acceptance must be received, this advert is not open to the whole world and that there is no specified way to accept, I would have to conclude that it is in fact an invitation to treat. In my view, and supported by Partridge vs. Crittenden, what Mr Benitez is in fact saying is that he makes a promise to accept the first offer for £440 he receives by 9am Wednesday morning.
If Mr. Benitez had made a formal legal offer, consider which of the two would-be buyers below is more likely to have accepted the offer. Give full reasons why:
b) Mr. Dudek saw the advert and left a message on Mr. Benitez’s answer phone, at 9am Tuesday saying, “Does this include the goalies strip? If so, I will take the lot”.
Mr Dudek is making a request for information, which is not normally considered an offer, as Stevenson vs. Maclean (1880) showed. Indeed, Mr Dudek’s acceptance statement can also be considered a conditional acceptance, which Neale vs. Merrett (1930) states is in fact a new offer. In this case, case law states that Mr Dudek has made an offer himself of £440 for the 22 shirts provided one of them is “the goalies strip”. However, if the original offer included “the goalies strip”, then Mr Dudek could have been considered to have accepted the offer, as Stevenson vs. Maclean showed that a request for information does not terminate the original offer, hence Mr Dudek’s second statement would be viewed as an unconditional acceptance of the offer, as the requested information would have been supplied.
c) Mr Gerrard also saw the advert, and he wrote a letter to Mr. Benitez, saying “I will give you £400, and I enclose a cheque to this value”. The letter was posted first thing on Wednesday morning, but did not get there until Thursday morning.
Mr Gerrard is making a counter offer to buy the goods for £400. As the case of Hyde vs. Wrench (1840) decided, a counter offer to buy goods for a different price to that specified in the offer effectively over rules the original offer. Had Mr Gerrard sent a cheque for £440, he would have accepted the offer, as the postal rule states that acceptance occurs at the time of posting. In this case, the counter offer removes the original offer, so had Mr Gerrard posted his cheque for £400 at 8am, he could not have then accepted the offer by sending a £440 cheque at 8:30am, as the original offer would no longer apply. Mr Benitez will now have to decide whether to accept Mr Gerrard’s £400 offer, or continue negotiations.
Thus, Mr Gerrard cannot possibly have accepted the offer, as he has not made any form of acceptance, conditional or otherwise. He has in fact made a completely new offer, which Mr Benitez may consider for a reasonable period of time. In contrast, Mr Dudek’s acceptance can be seen as conditional, and thus would overrule the original offer. However, the wording of the message suggests otherwise: it is composed of two distinct statements, thus Mr Dudek is not making a conditional acceptance, he is making a request for information, and if this is fulfilled, he is making an unconditional acceptance. However, if “the goalies strip” is not included, then neither Mr Dudek or Mr Gerrard has accepted the offer, and Mr Benitez would then be free to negotiate with either, or neither, of the two in order to determine the final purchaser of the strips.
