Mrs Caril bought and used a smoke ball, but never the less ended up with flu, she therefore claimed the £100, which the company refused to pay they argued that their advertisement could not give rise to a contract,
Since it was impossible to make a contract with the whole world and that there fore they were not legally bound to pay the money.
This argument was rejected by the court, which held that the advertisement did constitute an offer to the world at large, which became a contract when it was accepted by Mrs Carill using the smoke ball and getting the flu.
She was therefore entitled to the £100 and won the case.
Source (Contract Law Elliot Quinn 6th edition)
Acceptance
Acceptance of an offer means unconditional agreement to all the terms of that offer acceptance will often be oral or in writing, but in some cases an offeree may accept an offer by doing something such as delivering goods in response to an offer to buy.
The courts will only intercept conducts as indicating acceptance if it seems reasonable to infer that the oferee acted with intention of accepting the offer.
Signing of a contract is one way a party may show his assent. Alternatively, an offer consisting of a promise to pay someone if the latter performs certain acts which the latter would not otherwise do (such as paint a house) may be accepted by the requested conduct instead of a promise to do the act. The performance of the requested act indicates objectively the party's assent to the terms of the offer.
Certainty
In order to be a binding contract and agreement must be certain that it should not be unduly vague, or incomplete.
“If the terms of the contract are uncertain or incomplete, the parties cannot have reached an agreement in the eyes of the law. An agreement to agree does not constitute a contract, and an inability to agree on key issues, which may include such things as price or safety, may cause the entire contract to fail. However, a court will attempt to give effect to commercial contracts where possible, by construing a reasonable construction of the contract.
Courts may also look to external standards, which are either mentioned explicitly in the contract or implied by common practice in a certain field] In addition, the court may also imply a term; if price is excluded, the court may imply a reasonable price, with the exception of land, and second-hand goods, which are unique.
If there are uncertain or incomplete clauses in the contract and all options in resolving its true meaning have failed, it may be possible to sever and void just those affected clauses if the contract includes a severability clause. The test of whether a clause is severable is an objective test—whether a reasonable person would see the contract standing even without the clauses.”
Source (www.wikpedia.com)
For example in a the well known case in Scammell v Ouston (1941) Ouston agreed to buy a van from Scammell providing his old lorry in part exchange and paying the balance , on hire-purchase terms over two years.
Before the price nature of those terms could be negotiated, Scammell decided not to go ahead with the deal, and claimed there was no contract between the parties.
The House of Lords agreed, pointing out that all though the courts aimed to aimed to uphold an agreement if there really was one,
The terms used were too vague to signify any true agreement the phrase ‘Hire Purchase terms’ could be used to describe many different arrangement it left open such questions as whether payments would be made on a weekly ,monthly or yearly basis whether there would be a an initial deposit and what the interest rate would be.
Consequently the parties cold not be said to have made a sufficiently certain agreement to constitute a contract.
Terms and Conditions
The terms of a contract describe the duties and obligations that each party assumes under their agreement. As well as the contractual term laid down by the parties themselves, called express terms, the courts may find that a contract contains what are called implied terms – terms which are read into a contract because of the facts of the agreement.
And the apparent intention of the parties, or the law on specific types of contract
Express term includes oral and written statements al in all the simplest of transactions will have some oral negations’ before a contract is made.
Companies making a deal for one to supply the other may hold detailed discussions about price, quality, and delivery before a contract is set in stone.
Written terms can be incorporated into a contract in the different ways by signature, by reasonable notice and by a previous course of dealing.
If a document is signed at the time of making a contract its contents become terms of that contract regardless whether they have been read or understood.
This principle is known as the rule in Lestrange v Graucob (1934) after a case in which a woman signed a hire purchase agreement for a cigarette vending machine without reading it.
The agreement contained, in very small print a broad exemption from liability for the product.
When the machine proved defective, it was held that signing the contract meant that the woman was bound by the exclusion clause and therefore had no remedy.
This rule does not apply where there is any misrepresentation as to the nature of the document signed.
Incorporation by reasonable notice means that if separate written terms are presented at the time the contract is made for example handing over a ticket – those terms only become part of the contract if it can be said the recipient had reasonable notice of them.
Time of notice As a rule an exemption rule clause is only incorporated into the contract if notice is given before or at the time of contracting.
Previous course of dealing If two parties have previously made a series of contracts between them, and those contracts contained an exemption clause, that clause may also apply to a subsequent transaction, even if the usual steps to incorporate the clause have not been taken.
Conditions is a term which is clearly an important one , in the sense that a breach of it would have very significant consequences for the innocent party, will usually be regarded by the courts as a condition.
Where a condition is breached, the innocent party is entitled to regard the contract as repudiated, and so need not render any further performance and can also sue for damages.
Case Scenario
In this case scenario the representative of house warm LTD Visits A and offers A the Offeree a loft installation A the Offeree is hesitant and decides to think the matter over this similar to the case of Carlill V Carbolic Smoke Ball Co ( 1893) where a offer is being represented to the offeor.
The following day A saw an advertisement by Housewarm Ltd that offers loft insulation at a standard price of £350.00 .
This is an invitation to treat by House warm Ltd like in Gibson v Manchester city council (1979)
A then immediately phoned Housewarm Ltd in order to accept the terms of this advertisement. The company replied owing to high demand the advertised offer has been withdrawn.
A then phoned Housewarm up on 7th of September leaving a message that he accepts the offer of £400.00.
A also send a letter confirming the order the same day, this is the consideration between the two party’s as A promises to pay Housewarm £400 for fitting his loft installation.
Like in Dunlop v Selfridge (1951) the House of Lords explained consideration in terms of purchase and sale- the plaintiff must show that he or she has bought the defendants promise bye by doing, giving or promising something in return for it.
A later goes to the pub for a drink with a mate that same day for lunch and his mate tells him he can get him a loft installation for just £300.00.
A then rushes home and telephone Houswarm Ltd expressing his wish to cancel the order.
The receptionist now on duty points out she did not have an opportunity to check the messages but will not down his wishes.
A”s Letter came to Housewarm on the 9th of September at Hosuwarm premises this now comes under certainty as because in order to be a binding contract an agreement must be certain , for example in Loftus v Roberts ( 1902 ) Roberts engaged an actress to appear in a play, at a west end salary to be mutually arranged between us ,
The court herd that there was no binding contract between them because the provision concerning payment was too vague.
Conclusion
I would advise A to go ahead with the installation of his loft installation as he has accepted the offer Housewarm was offering in both Oral and written terms.
The court would look to see if the contract between both parties is certain and attain clarification so in this case I would recommend A to go ahead with the loft installation with Housewarm.
BILLOGRPAHY
- Wikepdeia.com
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Contract Law 6th Edtion Elliot Quinn
- Property Law.co.uk
- Rics.org.uk
