Offer or invitation to treat?

 Display of goods- not an offer, but invitation to treat e.g. Pharmaceutical Society v Boots.
 According to the courts the owner/employee displaying good was not an offer, the customer
bringing goods to the till is the one offering to buy.
 Commercial practicality is why the courts hold this position e.g. if displaying goods was
automatically an offer to sell all cars in a dealership would be sold without a full agreement
being formed between the two parties.
 It wouldn’t be commercially practical for display of good to be treated as an offer, as if a
product was priced on the shelves incorrectly, the customer would be accepting the offer to
buy at that exact price- even it was wrong once scanned at the till. The shop would then
have to sell at this previously offered price causing them a loss- hence display of goods is an
invitation to treat.

 Advertisement= invitation to treat.

 Unilateral= a promise in exchange for an act. Accepted by doing the act requested.

The offeree is not obliged to do the act.

 Bilateral= a promise in exchange for a promise. Both parties bound to do something. Take an
obligation.

Advertisements – exception

- If sufficiently clear, advertisement may constitute offer of unilateral contract, addressed to

the whole world.
- General rule = advert is invitation to treat.

Tenders

Invitation to tender- description of goods to be bought/ sold/ service to be procured. Requesting

recipients to ‘tender’ for relevant contract.

Auctions

- Advertisement of auction is invitation to treat.

- Bidders make offers and can withdraw bids until the fall of the hammer. (Sale of goods act
1893 s.58)

*Exception- when it is without reserve is offer of a ‘collateral contract’ that auction will be on this
basis.

ACCEPTANCE
Def. a final and unqualified assent to the terms of the offer.

- Unqualified means it can’t be under certain conditions, it must be accepted as it is.

- Counteroffer means the original offer is rejected and modified.
- Request for information is not a counteroffer.
 /ACCEPTANCE WITHOUT KNOWLEDGE/
 Acceptance needs to be a final and qualified decision. It can not be a silent scenario.
 Silence cannot constitute acceptance= Felthouse v Bindley case, silence on negotiation while
selling a horse, he never agreed to the fact that silence was ‘proof’ of agreement.
 If silence could be acceptance, then you could agree to contracts that you don’t even know
about.
 The only exception – parties agree silence is taken as acceptance.

COMMUNICATION OF ACCEPTANCE-

 Acceptance must always be communicated, and the offeror must receive the acceptance.
 Parties waive in their contract the importance to receive acceptance.
 May be waived by implication in unilateral contracts.
 If accepting by act or conduct, it must be very clear.

POSTAL RULE- exception to the receipt rule.

Receipt rule- the offer is accepted when and where the offer is received.

Email acceptance- no clear appellate (concerned with or dealing with applications for decisions to be
reversed) authority on when email acceptance is effective. When sent? When arrives to offerors
inbox? When read?

- Thomas v BPE solicitors, supports instantaneous communication rules.

REVOCATION OF OFFER- BILATERAL

- revocation by lapse of time

- express revocation
- revocation by conduct.

UNILATERAL

- problem -> if acceptance = doing act, no acceptance until act is completed. Unfair to
someone who has started to do act.

Ambiguous acceptance :

/TOPIC 4- CERTAINTY AND INTENTION /

- Uncertainty=the agreement can’t be formed as the terms of the contract are unclear. Must
be understandable, obligations must be clear ext.
- E.g Scammell and Nephew v Ouston, terms weren’t clear to the contract wasn’t agreed or
binding.
- However, this can be controversial as what is vague and what is unclear is subjective to
everyone. If the matter was always that the contract is unclear so it can’t be binding, it
would be far too easy to get out of contracts and hence commercially impractical.
- General rule = All essentials should be settled, prior to agreement (parties, price).
- Everything that the parties themselves regard as essential to this particular contract (may
vary from case to case).
 - Void for uncertainty = not valid, not binding.

/CLARIFYING UNCERTAIN AGREEMENTS/

1. Contractual machinery- referring to other terms in the contract to help resolve the
issue.
Arbitration tribunal – an external party used to settle a dispute e.g., pricing on a
product.
2. Clarification/ Course of dealing – using previous agreements or patterns in
agreements (signed by the same parties) to guide the terms of the new uncertain
agreement.
3. Implied terms – the courts assuming they know what the terms of the contract
meant. Officious bystander test= terms that both parties would, as reasonable
people, have agreed to had it been suggested in advance.

4. Statutory intervention – sale of goods act 1979 section 8 = where contract silent on
price and provides no mechanism for determining it. Courts forced to base pricing
on market price.

5. Severing Vague terms – if unspecific terms aren’t essential for the contract, but
removing them causes the contract to be clear, they may be ignored provided the
rest of agreement provides sufficient certainty.

AGREEMENTS TO AGREE –

The role and risk of ‘intention’ =

- Contractual freedom= only bound if intention to be bound, no intention means no contract.

This can cause problems as the common law test for enforceability is consideration.
Enquiring into intention poses risks of creating uncertainty, know as the objective theory of
intention.
- Quote from Smith v Hughes 1871 LR QB 597 Lord Blackburn – ‘if whatever a man’s real
intention may be, he so conducts himself that a reasonable man would believe that he was
assenting to the terms proposed by the other party’ …… ‘the other man thus conducting
himself would be equally bound as if he intended to agree with the other party’s terms.’

-Opposing rebuttable presumptions based on parties.

 Social and family context= not taken seriously or binding as more informal. Not usually
legally enforceable.
 Commercial context= usually seen as legally enforceable.

EXCEPTION -> when the presumption can be rebutted. Importance of choices, nature of
relationship, subject matter and degree of formality all to be considered.

Commercial situations- presumption that intend legal relations quite strong.

CONSIDERATION –

Why does it matter? A contract needs offer and acceptance, certainty and intention AND
consideration.

The idea of what you have given in exchange for what the other person promises.

- Unilateral = do the act

- Bilateral = make the promise
- DEF. Promise cannot enforce promise unless has given or promised something in exchange.

‘Finding an element of mutuality or exchange in the agreement, each side must bring something’ –
Stone and Devenney.

- Consideration is a key requirement and is the heart of Irish contract law.

- It is the principle for distinguishing between enforceable from non-enforceable promises.
- Capitalistic market based idea.

What is good/bad consideration?

- Benefit or detriment
- Does there need to be an economic value?
- Economic value examined but weight unclear= Chappel & Co. v Nestle, Edmonds v Lawson.
- There should be a value, but this isn’t always a direct value, it can be indirect.
- Can be economic or not.

Detriment to promisee

- Giving something up or taking on some burden

- Transaction need not to be detrimental overall, eg Shadwell v Shadwell = marriage is the
consideration.
- There is no consideration if I don’t want you to do the following act, there should be
mutuality in the acts.
- Must be requested bargained for. Unrequested detriment is reliance not consideration.
Combe v Combe [1951] 2 KB 215.

/Sufficiency v Adequacy/

-must give some valuable consideration [sufficiency], no enquiry as to whether consideration

proportionate to benefit [adequacy].

-a contract requires a bargain- not a ‘good’ bargain. -> Chappell & Co ltd v Nestle.

-Money will be sufficient regardless of the amount.

-PAST CONSIDERATION = as consideration must be linked to a promise, a way of ‘buying’ the

promise. General rule, past consideration is not good consideration.

- Exception : ‘unexpressed bargains’ Re Caseys Patents 1892 1 Ch 104.

Duties under general/ public law

Where have existing legal obligation to do X, doing X/ promising to do X will not constitute sufficient
consideration.

Sub poena- order from the court to go and give a statement for a case, it would be a felony to not
attend.

Where they go beyond existing duty, it will be seen as sufficient consideration.

Existing Contractual Duties to Third Parties-

 Performing or promising to perform a contractual duty already owed to third party be

sufficient/
 Adjusting/ renegotiating duties during contractual relationship. One party agrees to do more
for the same consideration/ accept less for same performance.
 Pre-existing contract duty – Old approach
 New approach
 Part payment of debt

ESTOPPEL

 The traditional view of estoppel is that it is ‘a mechanism for enforcing consistency’ ‘may be
obliged to stand by what I have said or done, even though I am not contractually bound to
do so’
 E.g. estoppel by representation = having said that x is the case, cannot now deny that x is the
case.
 Estoppel by convention= having jointly proceeded on the assumption that X neither party
can now deny that assumption. (Both have an option that leads them to act/ promise to do
something, whereby representation it is a single-handed opinion).
 You must stand by what you said. In Jordan v. Money, estoppel is limited to statements of
existing fact- not statements of intention.

PROMISSORY (EQUITABLE) ESTOPPEL

- Discretion to relieve strict application of common law doctrines/ provide a remedy where
law does not; to do equity between the parties.

Equitable = Fair is sometimes seen as a substitute for equal, but if an organization were to set rules or
standards that were inherently fair, then something could be fair and yet be unequal. Equitable goes a step
beyond fair. Equitable means something is fair to all parties as dictated by reason and conscience.

Condition for establishing promissory estoppel – 7 key requirements.

- Preexisting legal relations between the parties

- Unambiguous relationship.
- Reliance by the promisee (and possible detriment); if not acted on, the reliance is not valid.
In some cases, the courts look for detrimental reliance, but not all.

- Some elements of unfairness and unconscionability. = when there is detrimental reliance then it is
much easier to prove there is unfairness in the contract.
 - That the estoppel is being used not as a cause of action, but as a defense; and
- That the remedy is a matter for the Court.
- Suspends rather than extinguishing rights (unless cannot put promisee back in original position)

SHIELD NOT A SWORD-

-promissory estoppel will not ground new cause of action, prevents promisor relying on strict legal rights in
pursuing/ defending claim.

-Combe v. Combe 1951 2 KB 215 [promise of maintenance no consideration] doesn’t create more cause of
action where none previously existed. Prevents the party from insisting on his strict legal rights, when it would
be unjust to allow him to do so.

- estoppel is not a cause of action, it needs a legal relationship to ground claim.

-estoppel is a suspensory function  makes sense in context of continuing/ periodic obligations.

- ONE OFF OBLIGATION = Collier v Wright, promissory estoppel is normally suspensory only, nut if effect
of withdrawing is sufficiently inequitable a debtor may be able to show that the right to recover the debt is not
merely postponed but extinguished.

ESTOPPEL AS A FREESTANDING ACTION

-Proprietary estoppel, distinct from promissory limited to assurances that have/ will have interest in land.

-Ramsden v Dyson, tenants spend money on land because they have an interest in it.

- Crabb v Arun District Council

AUSTRALIAN APPROACH-

Waltons stores v Maher, agreement to destroy building on M’s land and construct a new one under W’s
conditions; later to lease it as a supermarket. After the building is demolished they pull out of the deal.
Topic 7: FORMALITIES AND E-CONTRACTS
-Contracts made orally and informally are effective and enforceable.
- You may use a formal document (which is signed, sealed and delivered) (Deed or Deed under seal)
to ensure enforceability without consideration.
-Land and Conveyancing Law reform Act 2009, s. 64 (abolished requirement for seal on deed provided
witnessed and expressed to be a deed). If the document states it is a deed, it doesn’t need to be sealed and
doesn’t require consideration.

-Exception for contracts that need to be in writing= Statute of Frauds (Ireland) 1695.

Why do some contracts need to be in writing?

- Benefits: solid evidence, reduces fraudulent/ dishonest/erroneous claims. Behaviourally speaking, parties realise
they are speaking on significant transaction, keeps a formality.
- Burdens – efficiency, writing impractical for many everyday transactions. Fairness- writing requirements may
cause disappointment where one party backs out of what was orally agreed (Gazumping)

Which contracts require writing?

 Contracts or guarantee (signed by a third party to make sure the primary fund giver has a back up to pay
debts/costs/mortgages if they can no longer pay it- the third party guarantees that they will pay in this case)
 Contracts not due to be performed within one year (based on parties expectations when the contract is made-
discussion of how long it will take). If one party performs within a year, wont apply, even if the others partys
obligations continue longer. Murphy v O’Sullivan.
 Marriage consideration contracts.
 Sale of goods that cost more than £12, not applicable today- only with many exceptions. Today the exceptions are
considered as the rules, to fit todays climate.

Memorandum

-Must evidence the essential terms of the agreement. What is essential of objective intention of parties Stinson v Owens.

- sale of land, must evidence i) parties, ii)property iii) price Godley v Power

- No specific form of document, provided that it evidences contract: e.g. note written on a cheque (Doherty v Gallagher),
cancelling an oral agreement (Tradax v Irish Grain Board)

-May actually predate agreement

In writing: DOESN’T MEAN INK ON PAPER

-Now email, texts, social media posts ect accepted.

SIGNED BY THE PARTY TO BE CHARGED

- Signature may seem straightforward but isnt always.

- Solicitor deemed to adopt letterhead as signature
- Name at bottom of email = signature
Solicitors initials for reference purposes.

BRIEF ON EQUITABLE MATTERS

Major equitable maxim that can be seen in the law of contract

- Equity follows the ut per legem terre

- He who seeks equity must do equity
- Cont
- Cont
SALE OF GOODS ACT 1893

Three exceptions for requirement of writing for sale of goods valued at over £12

- Buyer accepts all or parts of goods

- Part payment given and received (must be accepted – Kirwan v Price- payment declined  not enforceable)
- Something given in earnest to bind the contract- sign of seriousness e.g business card, credit card number

DOCTRINE OF PART PERFORMANCE

-most applied in relation to sales of land but in principle application is wider

-equitable remedy, ensure a statute passed to prevent fraud doesn’t become an engine of fraud

-where a party has performed part of their obligations under the contract other party may not be allowed to rely on absence
of writing to prevent enforcement.

Why?

- Evidentiary explanation= fact of performance provides clear evidence of the existence of a contract- don’t need
writing to prove a contract
- Fairness explanation-

PART PERFORMANCE – Example

McCarron v McCarron

Plaintiff works 16 years 8 hours a day before and after work

Assurance that he will inherit the farm ‘you will be a rich one day’

Defendant dies intestate (no will)

Plaintiff fights for right to inherit farm based on inter alia (part performance and oral performance)

PRINCIPLES

Mackie v wilde = must be concluded oral agreement, plaintiff acted in such a way to show an intention to perform the
contact.

Defendant induced acts of performance or stood by during performance

Must be unconscionable and in breach of good faith to all defendant to rely on the statute of frauds. (not similarities with
estopell)

PART PERFORMACE – unconscionability

- Equitable basis
- Needs to show defendant was aware of/ encouraged part performance
- Cont
- #

Unconscionability is a doctrine in contract law that describes terms that are so extremely unjust, or overwhelmingly one-
sided in favor of the party who has the superior bargaining power, that they are contrary to good conscience

Equity-

Capacity- the general rule

- Adults are presumed to have contractual capacity, the capacity to enter into and be bound by contracts.
 - Certain categories of people lack contractual capacity e.g. infants, mentally incapable and those intoxicated.
- Counterparty can rely on contract with intoxicated/ mentally incapacitated person unless they knew or had reason
to know of situation.
- General rule- contracts made by those without capacity are voidable and can be repudiated (cancelled).
- Good faith = the party is innocent with their intention to form a contract. The is no bad intention, or ideas
involved.

CAPACITY – THE COMPETING RATIONALES

o Protecting infants – assumed to lack cognitive capacities to make significant legal decisions. Binding them to
contracts would expose them to exploitation
o Protecting third parties- those who contract with a minor- sometimes unknow- may suffer undue losses if no legal
effects attached to minors’ contracts.
o Practicality- have to make sure that not all contracts’ minors involve themselves in are completely void, but simple
contracts necessary for their daily lives are allowed. E.g. buying a bus ticket

CONTRACTS FOR NECESSARIES

- Minor will be bound by a contract for necessaries where the price is reasonable.
- What counts as necessary will vary according to circumstances.
- Sale of Goods Acts- goods suitable to the condition in life of such infant or minor or other person, and to his actual
requirements at the time of the sale and delivery.

NECESSARIES V LUXURIES

- What is necessary may vary depending on ‘condition in life’

- E.g. fine clothing may be luxury for a laborer but a necessity for a noble lord.
- A horse necessary where medically required to get exercise (O’Neill v Reid 1845) but hunting horse for sport is for
luxury (Skrine v Gordon 1875)
- A bicycle was a necessity in the case (Scarborough v Sturzaker 1905) or a gun (Dickson v Buller 1859) may be
necessary where required for infants work [ back in the day minor worked as a security guard]
- What is necessary changes over time ( First Charter Financial corp v Musclow)

REASONABLENESS

Contract for necessaries will only ne upheld where it is plausibly for the benefit for the infant (Fawcett v Smethurst 1914)