Acceptance

Acceptance

• What constitutes acceptance?
• Yes
• –
• No – Yes, but on different terms
• Cross
• Offers
• Lord Blackburn states in Tinn
• v Hoffman
• (1873) 29 L.T. 271
• at 279,
• “Where a contract is made . . .there are
• two assenting minds. . . But I do not think that exchanging offers would be at
• all the same thing . . . . The . . offer made on each side in ignorance of . .
• the offer made on the other side, neither of them can be construed as the
• acceptance of the other.”

Qualified Acceptance I

• Wolf & Wolf v Forfar Potato
• Co
• 1984 S.L.T. 100
• Rutterford
• Ltd v Allied Breweries Ltd 1990 S.L.T. 249.
• In Findlater
• v Maan
• 1990
• S.C. 150; Lord Justice-Clerk Ross opined at 162,
• “[The letters] were two offers which
• existed at the same time, one at the instance of the seller and one at the
• instance of the purchaser. They were not written under reference to one another
• and neither of them superseded the other; they both co-existed.”
• And see Stevenson Jacques & Co v
• McLean
• (1880) L.R. 5 Q.B.D. 346;

Qualified Acceptance II

• Not all ‘new terms’ in acceptance amount
• to a qualification:
• Erskine v
• Glendinning
• (1871) 9 M. 656. Lord
• President
• Inglis
• stating (at 659),
• “[I]t is further contended that the
• addition of [these] words . . . imports a condition into the acceptance . . . I
• cannot agree with this view. It did not require the offerer to
• consent . . . The landlord was entitled to require that his tenant should enter
• into a formal lease . . . embodying the terms of their contract.”
• But see Stobo
• Ltd
• v Morrison’s (Gowns) Ltd
• 1949 SC 184; Lord
• President
• Cooper (at
• 191),
• “‘The bare fact that the parties to a
• completed agreement stipulate that it shall be embodied in a formal contract
• does not necessarily import that they are still at the stage of negotiation. In
• each instance it is a matter of the construction of the correspondence in the
• light of the facts, proved or averred, on which side of the border line the
• case lies…An acceptance cannot be read as subject to a suspensive condition
• merely because the acceptor puts into words what the law would imply as the
• method in which an agreement, ex hypothesi
• complete,
• would be carried into legal effect.”

Communication of Acceptance I

• Postal Acceptance Rule
• Thomson v
• James
• (1855) 18 D. 1
• But see Burnley v Alford
• 1919 2 S.L.T. 123
• and Carmarthen
• Developments
• Ltd v Pennington [2008]
• CSOH 139; per Lord Hodge.
• See also Countess of
• Dunmore v Alexander
• (1830) 9 S 190.

Communication of Acceptance II

• Instantaneous Communications
• *Entores
• v
• Miles Far East Corporation [1955] 2 QB 327
• *Brinkibon
• v
• Stahag
• Stahl etc
• [1983] 2 A.C. 293
• *Park,
• Petitioners [2009]
• CSOH 122
• *
• Silence
• * The
• Leonidas
• D [1985]
• 2 All E.R. 796
• * Felthouse
• v
• Bindley
• (1862) 11 CB (NS) 869
• *Wylie
• & Lochhead
• v McElroy & Sons
• (1873) 1 R. 41
• * Shaw
• v
• James Scott Builders & Co [2010] 68; Lord Hodge

Communication of Acceptance III

• Waiving Communication of
• Acceptance
• * Carlill
• v
• Carbolic Smoke Ball Co. [1893] 1 QB 256
• The Battle of the Forms
• Further Reading: Jacobs,
• The
• Battle of the Forms (1990)
• 38 American Journal of Comparative Law 265
• *Exception:
• Roofcare
• Ltd. v Gillies
• 1984 SLT (Sh.Ct.)
• 8