This essay involves a civil wrong where the claimant Mrs Jones (the person who has been wronged) seeks to sue the defendant Gucci (committing the civil wrong).

The wording in an advertisement can convert into a unilateral offer, which requires the performance of a specific act as seen in the Carlill case (see later). Counsel for the smoke ball company argued the advertisement was a gimmick. The Court of Appeal rejected this view and stated that depositing £1000 with their bank shows a clear intention to be bound by an offer. Lord Justice Bowen stated, “It was intended to be issued to the public and to be read by the public”. The performance relating to Gucci notice is the sale to the ‘to the first customer through our doors on Monday morning’ and there is an intention to be bound by display of the goods at a specific price.

Next we assume the notice could be held as an offer as there seems to be the appearance of an agreement or at least a promise.

Unequivocal acceptance of the offer

In this case Gucci is making the offer and Jones has accepted. Acceptance is a final and unqualified expression of assent to the terms of an offer. In court they would examine the facts, not necessarily looking for actual agreement but sufficient elements to identify an agreement capable of binding both parties; these elements being an offer, acceptance, consideration and importantly an intention to create legal relations. ‘Once a statement or action is categorised as an offer then the person from whom it emanated has put themselves in the position where they can become legally bound simply by the other party accepting’.

Communication of Acceptance

In cases where rewards are offered the offeror cannot expect every member of the public to give a written acceptance before performing the agreement. Lord Justice Bowen in the Carlill case made reference to this with the dog analogy, in that an offer impliedly indicates that he does not require acceptance of the offer.

A bilateral contract is an exchange of promises between two parties, which they are bound to after exchange.  A unilateral contract is one sided, it can be described as an “if” contract, if the offer can be converted in to a statement with “if” preceding the offer. In the Jones case the statement would be “IF you are the first customer through the doors on Monday morning you can buy the fur coat for £50”. In a bilateral contract silence does not constitute acceptance.

Consideration

Gucci may claim that there was no consideration, i.e. money paid to them, by Mrs Jones. There appear to be two possible considerations here. Consideration by way of time and expense incurred by Jones by waiting over the weekend in anticipation of the offer (detriment) and secondly financial gain from increased sales from publicity (benefit). The consideration does not have to adequate but has to be sufficient as to have caused a detriment and a benefit to the parties.

When does Acceptance take place?

It can be suggested that there may be an existence of two separate offers i.e. a collateral contract in this case Mrs Jones would offer to by the fur coat upon entering the store and an implied offer not to revoke once Mrs Jones has started to perform.  In Errington v Errington the implied offer is accepted by beginning performance, if the offeror attempted to revoke he would be liable for breach of this promise and other party under no obligation.

An alternative is acceptance is complete once the offeree has unequivocally commenced performance (so that the offeror cannot revoke the offer after this time see Errington case below). This poses a difficult question as to when acceptance occurred. When she went home to prepare food and sleeping bag for weekend stay or when being the first to enter the store completed the act.  If acceptance relates to start of performance she may be contractually bound to complete. This may destroy the unilateral contract proposition, as there is now promise from both sides.  

Revocation of the Contract

The general rule is that an offer may be revoked at any point prior to acceptance, however, this is not the case in a unilateral contract this authority derives from Errington v Errington in which Lord Justice Denning stated revocation could not be done where the parties had performed some act in acceptance of the contract. However, if they were to leave the act unfinished the offeror would cease to be bound by the contract but there is a requirement that offeror does not prevent the condition becoming satisfied

This view is supported in Daulia Lord Justice Goff ‘once the offeree has embarked on performance it is too late for the offeror to revoke his offer’. Thus it seems there could exist an implied obligation on Gucci, not to withdraw notice 15 minutes prior to opening and claim fur coat no longer for sale. This would stop Jones from completing the act

The revocation of unilateral offer must be brought to the attention of the offree via communication by the same channel (no English authority to support this) By Gucci removing the fur coat and notice from window 15 minutes prior to opening was there adequate notice given to claimant? This may have to be argued in court.

Remedies for Breach

There are two options for the remedies. Firstly, specific performance, which enables the court to impose Gucci to sell the fur coat to Mrs Jones at the price stated. This is difficult to enforce, most likely the second option would be considered. Jones would sue for damages seeking compensation for the fact that she has not received the bargain. In theory the courts would put her in the position had the contract been fulfilled.

b) The advertisement in a newspaper is seen as a bilateral contract where as the above scenario is a unilateral contract. In Partridge v Crittenden Lord Parker CJ concluded that newspaper adverts were not an offer but an invitation to treat, as once the supply of the goods had been exhausted the offer would naturally expire and is impossible to expect the retailer to have an infinite supply of the goods to provide to all who accept offer.  So even though the goods and price was specified, there may not be an offer.

 In contrast the famous Carlill v Carbolic Smoke Ball case, advertised in the Pall Mall gazette we found that there was an intention to be bound if someone caught the influenza virus from taking the smoke ball in the prescribed dose. This demonstrates a clear intention from the wording and the by the depositing of money in to the bank to be bound which shows this to be an offer.  

Although it hold no authority here an American case decided an newspaper advertisement can amount to an unilateral offer capable of acceptance by specific conduct detailed in advertisement ‘successfully managed to be the first one to appear at the seller’s place of business to be served’ 

This specific advertisement would be made the public i.e. the world at large and with the set terms in the statement there is intention to be bound. There would be waiver of acceptance as could no expect all of public to write an acknowledgment.

In conclusion my advise to Ms Jones is as follows

Most civil cases are heard in the county courts, high court and civil division of the high court. With a few reaching the House of Lords, the courts in a civil case would look at the balance of probabilities when looking at proof i.e. would take an objective view to existence of an agreement. In the objective test “ an offeree would be bound by words or conduct if it led a reasonable person to believe they intended to be bound, even though it may not have been the intention.”

Gucci will most likely seek to argue at first instance no contract was formed, as the advertisement display was an Invitation to treat only. No offer existed and therefore no breach of contract.

 If the court decides there is a contract is it enforceable? Sufficient consideration and a benefit and detriment.

If we look at Gucci promising to sell the fur coat at £50, to a member of the public, Jones, who is to be the first customer through the door on Monday morning, the performance of this condition should bind Gucci. This would be deemed an implied contract as the window notice shows intention to offer and intention to be bound on a condition being fulfilled. As there is no consideration of money here it would be difficult to pursue a binding agreement

In a unilateral contract the requested act would amount to both acceptance and consideration by the promise made by Gucci

General principles in contract allow an offer to be revoked at any time, however, from Errington v Errington authority it appears to show that you may not be able to revoke a unilateral contract once Jones has started to perform.

If there appears to be a binding contract the claimant Mrs Jones will be entitled to the remedy of damages (money awarded). Or the remedy of specific performance will be achieved by putting her in the position as if the contract had been properly fulfilled.

APPENDIX

The research strategy involved firstly consideration of both sides of argument. By initially defining the area of law relevant to this case  and looking at relevant authority in statute law. This was clearly the area of contract law where an agreement between two parties Jones and Gucci was in dispute. Thus by defining the terms “Offer” and “invitation to treat” and making a distinction between the two. I initially thought the sales of good act 1979 may deal with the formation of contracts but I found only information regarding auction sales. S62 (2) shows that a contract on the sale of goods is formed according to offer and acceptance rules in common law. After this we looked at the intention of both parties and especially acts that would bind and application of the objective test of a reasonable person. After which we look at case law to find similar facts and distinguishing cases which relate to advertisements as a display. The second research strategy involved examining how the law applied to Newspaper advertisements and again the above method used.   The use and search of Westlaw Online and the Chitty on contracts was used to find the relevant case law. The rules relating to contract mainly derive from the  early nineteenth century and in this day some of the rules may not always apply to modern conditions (once such area will be internet transactions). Although Jones is pursuing for damages under civil law mechanism of Contract. If she was seeking satisfaction without compensation she may inform relevant bodies to pursue the case on behalf the public. The Gucci company could incur criminal liability under the consumer Protection act 1987 s 20 (1) withdrawal of offer or deceit, i.e. Gucci had issued an advertisement with no intention to supply. This would be difficult to prove. Other grounds would be the Trade Descriptions Act 1986 s14 (1) and the false statements in adverts to terms of supply in the Misrepresentation Act 1967.

BIBLIOGRAPHY

1  Atiyah,P.S. et al.  The Sale of Goods, 10th edn, Pearson Education Ltd, Essex  (2001)

2 Beatson, J. Anson’s Law of Contract, 28th edn, Oxford Press, (2003)

3 Chitty on Contracts –Volume 2 General principles and cumulative supplements 2nd & 3rd

4 McKendrick, E.  Contract Law- Text cases and materials, Oxford Press, (2003)

5 McKenrick, E  Contract law, 5th edn, Ocford Press, (2003)

6 Oughton, D, Davis, M.  Sourcebook on Contract Law, 2nd edn, Cavendish   Publishing Ltd, London (2000)

7 Poole, J.  Casebook on Contract law, 6th edn, Oxford Press, (2003)

8 Simpson, AWR. Journal of Legal Studies Volume 14(2) June 1985

9 Stone, R. The Modern Law of Contract, 5th edn, Cavendish Publishing Ltd, London (2003)

10 West Law Online- case locator and journals.

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