Intentions of the parties are concerned
The risk of failed communication is allocated
Conclusion
References List
Table of Cases
Adam v Lindsell [1817] WL 2056
Carlill v Carbolic Smoke Ball Co [1892] 2 Q.B. 484
Payne v Cave [1789] 3 TR 148
Introduction
The existence of rule is accepted as a guideline to educate or straighten up the people in the region that has been stated. It is also planted in mind that rules are saviours from problems, fraud of all kind. Law is rules that are enforced. Rules that are made compulsory to be followed by the people. The function is somewhat similar to rules, that is to prevent any unwanted knots of any aspect and if such exist, is it there to solve with just and fair.
As a division of law, law of contract is created to specialise in problems with contract formed. What is contact? Contracts are bargains and the natural way to make a bargain is for one side to propose the terms and other to agree to them. So contracts are almost invariably made by a process of offer and acceptance. Contracts can be counted as not valid or void if it is unenforced. For that, a contract has to fulfil legal requirements such as offer and acceptance, mainly, and others. Offer and acceptance is the focus of this discussion.
An offer is the statement by a party of its intention to contract with another party. Its content must be explicit and specific and indicate the offeror’s intention to be contractually bound to the offeree. Offeror is the party who makes the offer while the offeree is the party that the offer is made to. Acceptance is a statement by the offeree with intention accept the terms of the offer and thus be contractually bound to the offeror. An acceptance must be given while the offer is still valid. Now that we know what is contract law, offer, acceptance and their relationships, the roles of law can be discussed. It is questioned that those rules on offer and acceptance are activated to concern the intention of parties or is it there to a lot communication that leads to a definite contract. In my opinion, I would say that these rules are invented for both purposes.
Intentions of the parties are concerned
The intentions of the party in making a contract is projected through the objective of making an offer or accepting an offer. As in the definition of offer, that it is a proposition by one person to another person made with the intention that it shall become legally binding as soon as the other person accepts it. The offer made with an intention to proceed with the good deal in contract is concerned by the rules. The actual intentions of the parties are declared through the terms of an offer made. For instance, if A is offering to sell his car to B, he shows his actual intention by supplying the sufficient information to the other party. For instance, the price, the transfer of ownership and many more. To make it even clearer, he may want to show the other offeree a chance to test drive the car.
When this intentions are revealed, there is no choice to say that it was an invitation to treat and not offer. In the case Carlill v Carbolic Smoke Ball Co., the intention to make an offer was proved by the company depositing £1000 in a bank. Later, Mrs Carlill successfully conduct the term of the offer, that is to contract influenza after using the smoke balls as prescribed. The intention is very clear but the promise to pay the money, which is £100, was not intended to give to Mrs Carlill. Apart from the intention of the offeror, the actual intention of the offeree or the party that conducts the term of the offer is also concerned. As this case was unilateral, the offeree was required to act out. The intention of Mrs Carlill as the offeree to be legally bound was proven when she bought the smoke ball and used for the whole prescribed time and contracted influenza. Therefore, the intention to be legally bound was very clear. The court’s judgement can be said to have in concern to both offeror and offeree. The intention to make the offer and to accept the offer was given consideration.
Apart from this case, the case Payne v Cave, can also be used to prove that the rules are concerning the parties actual intention. In this case, the rule has been considering the position of the offeror, the defendant. He cancelled his bid or offer before the hammer was brought down for Mr Payne’s goods which was on the auction. His was the highest bid of all. The intention to invite various offers to sell the goods was displayed by Mr Payne. It was clear due to the auction he has manage to set up. Meanwhile, the intention of Mr Cave was not stagnant. First, he intended to make an offer and made one. Then, he cancelled it. But his intention was concerned as the rule says an offer can be revoked before acceptance was made. The acceptance here was the hammer being brought down. Therefore, it is once again proved that the rules are considering the actual intention of the parties.
The risk of failed communication is allocated
The risk of failing a communication is very common in accepting an offer through postal rule and instantaneous communication. An acceptance is a statement by the recipient of the offer that it intends to accept the terms of the offer and thus be contractually bound to the offeror. Acceptance must be given while the offer is still valid, that is before it lapses or is revoked. It is understandable that these are the areas of having a possible communication failure. Other acceptance modes are through oral or conduct where it is an area with very low possibilities of having a failure. As for offer, there is no possibilities to have any communication failure. It is considered that offer are the starting point of making a contract. Therefore, no failure of communication can take place in making an offer.
To prove that the rules are there to decide whether the communication of acceptance has failed or not, the case Adam v Lindsell can be utilised as an example. The failure of communication in this case is when the defendant had sent the letter of offer to plaintiff but wrongly addressed it. Since there was a mistake in sending the letter, the offer will be in the knowledge of the offeree when the letter is received. They did sent the letter of acceptance to the defendant, who by the time had already made a contract with another party. Therefore, there was another contract made to the plaintiffs too. It is impossible to say that there is no offer or acceptance as the letter by the defendants was received later. The delay made by the defendants was a failure of communication and it is not to be blamed by the plaintiff in this case. It is also clear that the offer was not miscommunicated. It was just the matter of sending it to the right address. The judgement by Law J was that the offer was effective the moment their letter was posted. The contract was concluded when the plaintiff posted their acceptance. Hence, the court successfully decided that there was a contract formed between the parties and it proves that the risk of communication failure can be solved by using the rules of offer and acceptance. Apart from that, as mentioned above, instantaneous communication has a few cases of having a failed communication. It is again proved that the court was able to identify that mistakes and able to conclude the existence of contract.
Conclusion
Lastly, I would say that the rules on offer and acceptance in law of contract is concerned with the actual intentions of the parties as well as identifying the risk of failed communication between the parties. It is my opinion that the rules are always to fight for justice for the parties. Therefore, the rule will never fail to do so. It is to protect the parties from fraud or any other complications, the rules is also there to concern all the aspects of the contract.
Reference List
Brierre G R, ‘The Particularities Of Contractual Negotiation and Practice In China’ (2007) 2 IBLJ 151-170
Smith J C , The Law Of Contract, 4th edn, Sweet & Maxwell, London, 2002
Young M, Contract Law: The Basic, Routledge-Cavendish, New York, 2009
ATTACHMENT OF SOFTCOPY
J C Smith, The Law Of Contract, 4th edn, Sweet & Maxwell, London, 2002, 5
G R Brierre, ‘The Particularities Of Contractual Negotiation and Practice In China’ (2007) 2 IBLJ 151-170
M Young, Contract Law: The Basic, Routledge-Cavendish, New York, 2009, 10
Carlill v Carbolic Smoke Ball Co [1892] 2 Q.B. 484
Payne v Cave [1789] 3 TR 148
G R Brierre, ‘The Particularities Of Contractual Negotiation and Practice In China’ (2007) 2 IBLJ 151-170
Adam v Lindsell [1817] WL 2056
by
sheryl_anna (student)
