Finally it held in Errington v Errington that a unilateral offer could not be revoked once the offeree had started to perform the act.
However on the other hand in the case of Byrne & Co v. Van Tienhoven & Co Lord Herschell held that for revocation to be effective “it must be brought to the mind of the person to whom the offer is made”. However this may serve to rather difficult when the offer is made to the general public as was the case with the advertisement of the crossword puzzle. In this case it can be argued that Article 2:202 of the principles of the European Contract law states that “an offer can be revoked by the same means as were used to make the offer” A similar conclusion was made by the United States supreme court in Shuey v. United States. On the 20th of April 1865 it was advertised that the reward for disclosing the whereabouts of a particular criminal would be $25,000. However this offer was then revoked on 24th November 1866. The plaintiff had not realized that the offer was revoked and accepted the offer by discovering the criminal. It was held that the plaintiff was not entitled to the prize. Similarly the newspaper may argue that they communicated the revoking of the offer through a reasonable means of communications.
The idea that Bel was not entitled to her reward money is further highlighted in the statements by Mellish LJ that “in order to make a contract the two minds must be in agreement at some one time, that is, at the time of the agreement” This is in direct conflict in the case of Byrne & co v Tienhoven and also in the context of Bel and the Newspaper since both appeared to accept the contract but at no one time where they in agreement.
Finally the defendants in the case of Henthorn v. Fraser maintained tat they were not bound to sell the property to the plaintiff because they validly withdrew their offer before it was accepted. Based on this the newspaper company can claim that they had withdrawn the offer (Monday) before they received acceptance (on Tuesday) and since the general rule is that acceptance takes place upon posting of the acceptance as can be seen in the case of Entores Ltd v. Miles Far East Corporation Bel can not be entitled to the reward money.
Part B.
b) In another week, Molly has the bright idea of getting her friends Nel and Olly to photocopy her completed entry and send it in to the Sunday Sentinel. Molly’s entry is a correct answer, but the paper’s editor refuses to give Nel and Olly a share of the prize, despite the fact that photocopied entries are not expressly excluded by the rules.
It may be argued that it is up to the offeror to state any particular terms or conditions of the offer and more importantly whether the acceptance must be in a particular form i.e. Fax etc. However it is then up to the offeree to perform the act in its entirety. In this situation it is important to identify the act required for acceptance to validly take place. The act required here clearly stated to fill out the crossword. By photocopying another entry is only to partly fulfill the criteria. Although the offer should not be revoked until after the act has begun, it is also equally valid to say that the offeror should not have to make payment until the act has been performed fully. In the case of Errington v Errington a father bought his son and daughter in law a house. The son had to pay off the mortgage and once it was done the house would be transferred onto their name. However after the father died, the widow sued for possession of the house. It was held that she was not entitled to the house. It is clearly shown that if the performance had been left incomplete and unperformed then the offer would cease to bind on the father. Therefore it can be argued that the company has the right not to give the prize money to Olly since they have not fully satisfied the terms and conditions. Furthermore the Newspaper Company may argue that Olly misrepresented herself when she sent off the photocopy entry. Olly intended to make use of an opportunity to deceive the newspaper. A misrepresentation renders the contract voidable if the offeror so chooses.
Part C
c) Des and Ellie, a married couple, do the crossword together every week. Sometimes it is sent in Ellie’s name, and sometimes in Des’; whenever they win they share the winnings, which are usually only a few pounds. One week, theirs is the only correct answer. It had been sent in Des’s name; however, by the time they hear of the win, Ellie has left Des to live with Roy. The Daily Sentinel awards Des the prize, but he refuses to pay Ellie anything.
The issue at stake here is whether Ellie can claim the £2,500 of the £5000 which was won in Des’ name. This depends on whether Des is bound by his promise to pay Ellie. It may be argued that there was no intention to create legal intentions since Des and Ellie were a married couple. However this line of thought is rejected in the case of Simpkins V. Pays (1995) where each week the plaintiff, defendant and the grand daughter entered into a competition in the Sunday newspaper. The plaintiff filled out the coupon in the defendants name but they shared the entry fee and postage between all three of them. Once when the defendant won £750 he refused to pay the plaintiff one third of the prize money. The defendant alleged that the agreement made between them was never intended to be legally biding. Seller J rejected this arguments and held that the plaintiff was entitled to one third of the payment. He advocated that “there was mutuality in the agreements between the parties”
Further in the case of Balfour v. Balfour, Warrington LJ states that “these two people never intended to make a bargain which could be enforced by law” In addition to this Atkin LJ held that Mrs. Balfour had not “supplied consideration for her husbands promise since the parties were still husband and wife at the time of the agreement and had not separated at the time of the agreement. Therefore since Des and Ellie were still husband and wife when they entered the crossword there was no intention to make a legally binding contract between both of them. However if Ellie had been living with Roy at the time of the agreement then according to Merritt v Merritt (1970) the contract would have been enforceable.
In conclusion, according to the case of Simpkins V. Pays Des owes Ellie half the winnings. Further Professor Freeman argues that Balfour v Balfour is a case that represents Victorian family values and that the opinion of Des to refuse Ellie the money is not one of a reasonable mans.
.
Carlill v Carbolic Smokeball Co 1893
Byrne & Co v Leon Van Tienhoven 1880
Contract Law Ewan McKendrick page 129
Shuey v United States1875
Entores Ltd v Miles Far East Corporation
Errington v Errington and Woods 1952