Sheena Problem
An offer is an expression of willingness to be bound by the terms of the offer once it is accepted. The offer may be made by words, in writing, conduct or a mixture of all three. An offer can be made to one person, a group of people or to the world at large, e.g. where a reward is offered for a lost item, this is normally made via an advertisement and this is seen as a unilateral offer, which is one sided (Carlill v Carbolic Smoke Ball Co.).
Sheena sees an advertisement in a window which states ‘All mini disc players at ₤ 10 to the first twenty customers on Monday morning’. Sheena wishing to accept this offer queued up all night on the Sunday and was customer number seven. Once entering the store and selecting the mini disc player, she is informed that the management has decided to end the promotion. Due to this offer being a unilateral offer, the communication of the revocation of the offer is inappropriate. The rule that revocation must be communicated was established in the case of Byrne v Van Tienhoven, where a telegraph was sent on the 11th October, but a letter withdrawing the offer was posted on the 8th October was only received on the 20th October. The offer therefore was accepted on the 11th October so the revocation was invalid. As it states in the Shuey v US that if ‘the same notoriety was given to the revocation that was given to the offer’ the revocation is valid, whereas in this case, the same notoriety was not given. The Unreal Department Store did not therefore give reasonable steps to notifying persons who might be likely to accept of the revocation of the offer. Also it is importance that the revocation must take place before the acceptance, this is shown in Daulia Ltd v Four Millbank Nominees Ltd where the Court of Appeal considered that a unilateral offer could not be withdrawn once performance had started. For example in the case of Carlill v Carbolic Smoke Ball Co. in Mrs. Carlill’s situation this would have been when she bought the smoke ball. However, in the Daulia case, the statement was obiter, since the court found that the offeree in the case had completed his performance before the supposed revocation. Therefore in Sheena’s case, her acceptance of the offer was when she queued up and entered the store as the seventh customer, this is accepting the offer via conduct shown as mentioned earlier in the Carlill case and also in Brogden v Metropolitan Railway Co. (1877) which is important with acceptance by conduct, this looked like a counter offer but it wasn’t due to the conduct of the parties. The general rule is that acceptance is not communicated until it is received by the offeror. This is not really a problem when the parties are face to face, although Lord Denning in Entores Ltd v Miles Far East Corporation (1955) he said: “Suppose, for instance, that I shout an offer to a man across a river or a courtyard but I do not hear his reply because it is drowned by an aircraft flying overhead. There is no contract at the moment. If he wishes to make a contract, he must wait till the aircraft is gone and then shout back his acceptance so that I can hear what he says. Not until I have his answer am I bound.” The question was where exactly a contract was made in the case of instantaneous communications; it is similar in Sheena’s case, on where her acceptance of the offer was made. It is important to be aware of where the acceptance of the offer takes place, in Confetti Records v Warner Music 2003 where a record company produced an album from music sent to them by Confetti. It was then held too late for Confetti to revoke their offer. The beginning and completion of the production of the album was considered to be the acceptance of the offer and therefore the revocation of the offer was too late. Sheena’s case is similar to that of Lefkowitz v Great Minneapolis Stores, where a man was refused to be allowed to buy a fur coat on offer due to the advertisement was intended to be for women and therefore women to buy the item. It was held that the man had accepted the terms of the offer in the advertisement and was entitled to the coat. Sheena accepted the terms of the offer for the mini disc player and therefore she is entitled to buying the mini disc player for ₤ 10. It was also indicated in the Lefkowitz case that the advertisement was not an ‘invitation to treat’ but an offer. The advertisement Sheena saw was not an ‘invitation to treat’ as it was offering a reward unlike in the case of Partridge v Crittenden (1965) where an advertisement in a magazine offered Bramble finch cocks and hens for 25 shillings each. Bramble finch was a protected species and the person making the offer was charged unlawfully for offering the sale of wild bird contrary to protection of Birds Act 1954. The conviction was quashed as it was said that the advertisement was an invitation to treat. It is clear that when it comes to revocation, clearer authority is needed on the issue of revocation in unilateral contracts.