1 To form a contract must
be 'consensus ad idem'
(meeting of minds)
1.1 Most judges agree occurs
when there has been offer
1.2 Objective test used to find
this, looks at what parties said
and did, not what they thought
or intended. Reasonable man.
1.2.1 Smith v Hughes
1.2.2 Won't prevail when offeree knows or ought
reasonably to have known that offerer didn't intend
to make an offer, or an offer in those terms.
2 Expression of willingness to
contract on specified terms
without further negotiation, so that
it requires only acceptance for a
binding agreement to be formed.
3 May be expressed or implied.
4 To be an offer communication must
be; specific enough to be capable of
immediate acceptance; and made with
the intention to be bound by acceptance.
5 Will not be an offer when it is
an 'invitation to treat'.
5.1 All other statements made in course
of negotiations; those not capable of
immediate acceptance. Courts look at
language during the correspondance
to determine if offer or invitation to
5.1.1 Gibson v Manchester City Council
5.1.2 Storer v Manchester City Council
5.2 Adverts, brochures & price lists
5.2.1 Makes business sense for these to be
invitations to treat as otherwise an offerer
may be unable to supply all those who reply.
184.108.40.206 Grainger & Sons v Gough
220.127.116.11 Partridge v Crittenden
18.104.22.168 Exception being in unilateral
adverts, assuming the language is
sufficiently definite and nothing left
open to negotiation.
22.214.171.124.1 Carlill v Carbolic
5.3 Shop displays
5.3.1 Invitation to treat to protect the
shopkeeper's freedom of contract
and to allow customers to change
their minds after picking up an item.
126.96.36.199 Pharmaceutical Society of
GB v Boots Cash Chemists
5.4.1 Law unclear but it is generally thought
website will only be an invitation to treat.
Allows retailers to avoid contracts when;
the person in an excluded jurisdiction;
limited stock; pricing mistake etc. So
acceptance comes from the retailer. A
confirmation email may not constitute
acceptance, the terms will indicate when.
5.5.1 Request for tenders normally invitation
to treat as the party may have criteria other
than price that they wish to take into account.
188.8.131.52 Spencer v Harding
184.108.40.206 Two exceptions where a request is also
an offer; express contractual promise to
accept most competitive bid; contractual
obligation to consider tenders that
conform to the bid conditions.
220.127.116.11.1 Harvela Investments v
Royal Trust Co. of Canada
18.104.22.168.2 Blackpool and Flyde Aero Club
v Blackpool Borough Council
5.6.1 Request for bids generally invitation
to treat so a bid is an offer and
acceptance is the fall of the hammer.
22.214.171.124 Exception where there is no reserve. The
promise of no reserve is unilateral offer which
is accepted by the highest bidder.
126.96.36.199.1 Warlow v Harrison
5.7 Automatic Machines
5.7.1 No room for bartering so
display is offer and putting
money in is acceptance.