Denning in Gibson v Manchester CC: "no need to look for strict O&A - should look at correspondence and conduct as a whole" to see whether parties agree on everything material
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Response to Denning's statement in Gibson on appeal to the HL
Lord Diplock: "there are certain types of contract, though exceptional, which do not fit easily into the ordinary analysis, but in this case no need for departure from conventional analysis"
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Lord Wilberforce in The Eurymedon
The english law, having committed itself to a ... technical ... doctrine, in application takes a practical approach, often at the cost of forcing facts to fit into marked slots of O, A and C
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example of case not fitting into conventional O&A
The Satanita
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The Satanita facts
P and D entered yachts into a regatta, agreeing to be bound by rules of YRA. One was that the owner of any yacht disobeying any rules would be liable for any damages arising therefrom. D's yacht ran into P's (not D's fault)
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The Satanita judgment
Both parties accepted a contractual obligation, the effect of the agreement was to displace a statutory limitation which would otherwise have applied
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Should we abandon O&A entirely?
No - we need some certainty. One option is to recognise O&A as the principal but not only route - like Unidroit principles and principles of european contract law
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Will theory
Pothier and von Savigny
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critic of will theory
Professor Ibbeton - has some intellectual coherence but in reality a seemingly perfect agreement often conceals a more ragged mixture of agreement, disagreement and no thought given
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Harvey v Facey facts
series of telegrams "will you sell us BHP? T lowest cash price" "lowest cash price for BHP £900" "we agree to buy for £900 asked by you"
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Harvey v Facey judgment
No contract - first T merely inquiry, response by D not an offer but a precise answer
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Gibson v Manchester CC facts
council form - completed form asking info of price and mortgage facilities, D replied, P completed new enclosed form to make formal app, he completed and returned it but left part blank; they replied saying no; before they could reply council stoppe
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Gibson v Manchester CC judgment
letter was not an offer - did not commit them to sell ("may be prepared to sell") and the final sentence invited him to make formal app, not to accept the offer
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Advertisements - ITT or offer?
ITT - protect from unlimited liability
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Grainger & Son v Gough
trasmission of wine price list to persons likely to order NOT an offer
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Partidge v Crittenden
D had not committed the offence with which he was charged, b/c he had not "offered" bird for sale
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Example of advert being offer?
Carbolic Smoke Ball Co
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Carbolic Smoke Ball
inference that ad is offer more likely drawn in unilateral contract
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What does Simpson think about Carbolic?
Possible origin of intention to create legal relations doctrine - counsel for d submitted that d did not intend to impose upon themselves any obligation. Judges rejected this as not a mere puff. they would not have made this point w/o intention neces
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Display for sale in shop - ITT or offer
ITT - PSGB v Boots
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PSGB v Boots
display ITT - offer made by customer, which d could accept or reject, at the cash desk
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Fischer v Bell
Displaying flick knife not offer
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Tenders - itt or offer
ITT - Spencer v Harding
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exception to tender rule?
blackpool and fylde
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factors CA relied on in concluding blackpool and fylde offer?
addressed to small no. interested parties; procedure clear and familiar; outcome consistent w/ assumptions of commercial parties
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Hyde v Wrench
a purported acceptance which attempts to vary terms is a rejection plus counter-offer
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but what appears to be counter-offer may be mere inquiry
Stevenson, Jacques & Co: "please wire whether you would accept forty for delivery over two months, if not, longest limit you would give"
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Other cards in this set
Card 2
Front
Lord Diplock: "there are certain types of contract, though exceptional, which do not fit easily into the ordinary analysis, but in this case no need for departure from conventional analysis"
Back
Response to Denning's statement in Gibson on appeal to the HL
Card 3
Front
The english law, having committed itself to a ... technical ... doctrine, in application takes a practical approach, often at the cost of forcing facts to fit into marked slots of O, A and C
Back
Card 4
Front
The Satanita
Back
Card 5
Front
P and D entered yachts into a regatta, agreeing to be bound by rules of YRA. One was that the owner of any yacht disobeying any rules would be liable for any damages arising therefrom. D's yacht ran into P's (not D's fault)
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