Another problem with counter-offer is between businesses and the Battle of the Forms situation, in which both businesses will have standard forms which will have an advantageous affect for them and their company. The battle of the forms happens when the two parties are constantly exchanging forms during the process of negotiation with different terms on them, this creates a problem because how do you decide which parties terms are used or not. This can be seen happening in Davies & Co v William Old (1969), in which shop fitters contracted with architects to sub-contract with builders. The builders were under the instruction from the architects and they were told to issue an order for the shop fitters, they did this under their standard form which mentioned that the shop fitters would not get paid until the builders had themselves been paid. When the shop fitters did not get paid they decided to sue, but they could not because when they had carried on working they had accepted this term of the form. This creates a problem because sometimes people are unaware they have agreed to do something because they have not read the terms of the offer.
Another method of termination that has problems is revocation, especially the communication side, because an offer can be revoked at any time up until that offer is accepted, but if the revocation is not communicated then the offer has not been revoked. The offer cannot be revoked if it has already been accepted in the period of time given or it has been accepted before the offeror has revoked it. For example Routledge v Grant (1828) in which Grant put his house up for sale for a period of six weeks, before those six weeks had ended he decided to remove his house from the market. This was legal for him to do because nobody had accepted his offer to buy the house which meant he could take back the offer, but if someone had brought his house he could not revoke it. A big problem with revoking an offer is communicating the revocation because if it is not communicated then the offer cannot be legally revoked and therefore invalid. An example can be seen in Byrne v Van Tienhoven (1880) in which Tienhoven was in Cardiff and Byrne was in New York. Tienhoven sent a letter to New York offering to sell goods to Byrne, Tienhoven later changed his mind and sent a letter withdrawing the offer, however before Tienhoven had posted the letter Byrne had already sent a telegram accepting the offer. Byrne later received Tienhoven’s revocation, but by then it was too late because the acceptance had been sent before the letter of revocation and under the postal rule this meant that the letter of revocation was invalid as the acceptance letter was posted in advance of the revocation. This case shows how important communication and timings are. However in this case the offer could have been revoked by a third party as long as they were reliable, as in the case of Dickinson v Dodds (1876). The problem with a third party member revoking an offer is that they must be reliable in the eyes of both parties because any little detail that is wrong could create a huge mess. In the case of Errington v Errington & Woods (1952) the offer is being revoked whilst that offeree has already started to perform the offer. A father had brought a house for this son and he said that if they paid off the remaining mortgage debts they could have the house, they accepted this by paying the debts, however the father died before the offer was complete and other members of the family wanted the house so they tried to revoke the fathers offer but they could not because it was already half way completed and as long as the son managed to pay the debt off the house would be his. This case shows that if the acceptance method of an offer has already started then it cannot be revoked as long as the party stays on top of the action required. This causes problems because how can you say that an offer is still there is the person has died, some would say that the offer is now invalid but as long as the action has started and remains then it is ok.
A final problem and the biggest problem with revoking an offer, is revoking a unilateral offer because essentially it can be open to the whole country or even in some cases the whole world, and it is rather hard to inform the whole world that the offer has been revoked and is no longer in operation. It is especially hard to revoke it when the offeree has already started to perform the action such as in the case of Carlill v The Carbolic Smoke Ball Co (1893), in which a reward of £100 was promised to any customer that if after buying the smoke ball and following the instructions they still fell ill with influenza they would get the reward money. When Mrs Carlill came to collect the money the company said no she couldn’t and their defence was that it is impossible to make a contract with the whole world and that no contract had ever been made between Mrs Carlill and themselves. The judge ruled that of course a contract can be made with the whole world because it could be mase with anyone who brought the product and agreed to the contract by preforming an action with that product, and secondly there was a contract made because Mrs Carlill had already accepted the offer by using the smoke ball. This case shows that once you make an offer unilaterally you cannot revoke it when action has already taken place. If you were to revoke a unilateral offer then communication is essentially, because you need as many people who had seen the offer in the first place to then see the revocation of that offer but here is where the problem lies, it is fairly obvious that if you advertise an offer publicly, say in a post office for example the same people that saw that offer are the unlikely to see the revocation of it unless they go into that post office regularly, which causes issues because obviously people are going to accept that offer presuming that it is still open as they have not received and information about it being withdrawn. This is why reasonable steps should be taken in communicating the revocation as seen in Shuey v USA (1875) in which a reward scheme for wanted criminals was published in a public newspaper, making it a unilateral contract, there was no set period of time on the article so it was an open amount of time, until the president decided to revoke the offer. This revocation was published in the same way the offer had been made and in the same newspaper which shows that it had been communicated propery and the necessary steps had been taken to ensure as many people ho had seen in it the first place saw it again. However one person did not see and and found one of the criminals and he expected the reward but since it had been revoked a reward was no longer being offered and when he tried to sue he could not because it was his fault that he had not seen the announcement of the revocation and because the offer was not made only to him but to the whole country he should have been aware that the offer could have been revoked at any time.
There is also problems associated with the postal rule in the way that as soon as the letter is posted the offer has been accepted as seen in Adams v Lindsell (1818). The problem with this is that how would the other party know when acceptance has taken place unless you ring them up and say you have just posted the letter accepting the offer. Another problem is the reliability of the postal system, these days a letter could easily get lost or delayed for several days if not weeks, which means that if the other party has no idea you have accepted via post then they could go on and make that same offer to a third party. However if that was the case the the person who had made the offer is in breach of the contract because you have accepted the offer well in advance of him selling to another party. This is seen in Household Fire Insurance v Grant (1879) in which Grant had no idea that he had become a shareholder in the company because he never received his letter of acceptance as it had been lost in the post, so when that company went into liquidation grant was liable for some of that company yet he was unaware that he was. The courts said that it does not matter that he was unaware of the acceptance, but he was essentially a shareholder when that letter was posted to him. There are also flaws with modern methods of communication for example with telephones if nobody answers the phone and you leave a message it is your duty to find out if that person has received the message as you are the one wanting to make to contract, because if they do not receive that message they are not bound by anything, Lord Denning gave an example of this in Entores Ltd v Miles Far East Corporation (1955) by saying “If a man shouts an offer to a man across a river but the reply is not heard because of a plane flying overhead, there is no contract. If he wishes to make a contract he must wait till the aircraft has passed and then shout back his acceptance so that the offeror can hear it.”
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