Sunday, July 15, 2012

Offer or an invitation to treat:

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When considering this case, the most relevant and key question to answer is whether or not a contract is in existence between the two parties. When advising Quentin, the claimant, I have looked at many key issues within the case that could pivot the outcome in either parties favour. Firstly, we must determine whether Quentin’s advert is an Offer � (Something firm and definite that is capable of being accepted). Or an invitation to treat � ( where one party is inviting another to make an offer). Generally speaking, an advert is classed as an invitation to treat, an offer to the world at large, if this advert was to be an offer, you must look at whether there is anything firm and definite and anything that could indeed be accepted. Quentin’s specifications are clear, yet states no fee or any other particulars and therefore requires further negotiation.

Julian’s response on the second of January also must be dealt the same scrutiny, is this an offer or simply or simply the opening of negotiations. Julian may well have stated an initial price of the services of his client Lesley Hash, but stipulates there will be a price increase to be agreed in the ‘usual way’. should Julian and Quentin have had consistent dealings prior to this, then it would be viable to form a binding, bilateral contract. It would include consideration, intention to be legally bound, and upon acceptance of Quentin, would form contract. However, with no previous dealings, the terms would be too vague to form contract.

Julian went on to stipulate that if Quentin wishes to accept, then he must be ‘notified in writing within one month’. Here Julian has issued Quentin with a mandatory method of acceptance that Quentin must oblige by or no contract can be made.

In Quentin’s acceptance of Julian’s offer, Quentin stated ‘I assume you will accept payment by cheque’, this could be viewed as a counter offer but is distinguished from this due to the fact that Julian does not have any concerns or demands to change the contract. Therefore this question must be seen as a request for further particulars, this could be seen as a request for further negotiations, but in Quentin’s favour can also be considered to be …..

This therefore brings me to the next key issue, the postal rule, and can it be applied in this case. For the rule to apply, there must be seen to be reasonable and appropriate circumstances. The fact the response has to be in writing would fulfil both of these desired factors. Notice in writing is usually found within a letter and it is reasonable to post a letter as a means of making the notice reach its destination. Should the postal strike have been expected, then this would have forbidden the rule to be applied. It would be unreasonable to expect the letter to reach its destination, within the time limit, during a strike period, however the strike was unexpected and therefore provides strong argument the rule could be applied. When considering these points, it could be viewed that Quentin had accepted Julian’s offer, he obliged by the mandatory acceptance stipulated by Julian and due to the postal rule, the moment Quentin posted the letter in the box, he accepted the offer. However, Julian had also posted a letter a day prior to Quentin’s acceptance revoking the contract due to a better offer. However, Julian opted to use a private postal service, and as the royal mail is the only service that falls within the boundaries of the postal rule, then his revocation would only come into action upon reaching Quentin. This would be too late to revoke, Quentin’s acceptance, that was posted using the royal mail, would have come into action as soon as the letter was released into the mailbox and therefore disqualifies Julian’s revocation, as revocation can only occur any time up until acceptance. However, in Julian’s offer to Quentin, his use of language and wording could argue the postal is not acceptable in this case. He clearly stipulated that he wanted to be ‘notified’ in writing. In the case of Howell sec ltd v Hughes, Lawton L.J stated, ‘a notice is a means of making something known, a notice that never arrives makes nothing known’. Even though Quentin’s letter did arrive, it was after the set deadline date and after the700 revocation made by Julian, and therefore if found to be the case, the contract offer would indeed be revoked and withdrawn.

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