Offer & Acceptance
‘In light of modern technological developments, the rules on offer and acceptance are no longer
fit for purpose’ [2018]. Discuss.
Key Outline
Intended purpose of offer and acceptance rules
Difficulty in determining which rule applies to new form of communications
Even without modern technological developments, rules of offer and acceptance are not fit for
its purpose (can use this approach?)
Perhaps there is no need for doctrine of O&A, contract formation can be identified by other
doctrines such as consideration and ITCLR
*Traditionally a contract is formed where the acceptance is a mirror image of the offer. How
difficult is it to establish where this point is in English contract law?
Intro
‘Mirror image’ rule is that acceptance has to correspond to the offer [Butler Machine Tool v
Ex-Cell-O Corp]
Rule is important as it tells parties that
o The contract was indeed formed
o The precise moment in which the contract was formed
o What was agreed between parties
Not difficult to establish this point
At common law, any acceptance that attempts to vary the terms of the offer constitutes a
counter-offer interpreted as a rejection of the offer, instead of an acceptance [Hyde v
Wrench]
Difficult to establish this point
Slightly difficult, but can be reconciled and is justified
Hard to establish this point when cases have similar facts, but one constitutes contract
formation while another one does not inconsistency in case law
With regards to advertisements, general rule is that ads constitute an invitation to treat and not
an offer [Partridge v Crittenden] purpose is to protect party placing ad from incurring
liability in contracting with every single person willing to purchase
However, in Carlill v Carbolic Smoke Ball Company, court held that an ad can constitute a
unilateral contract
While they are indeed similar cases within the same category (of advertisements), this
exception is not arbitrary but was explicitly qualified by the court not inconsistency in case
law but rather careful distinction of facts
In Carlill, court said that the ad constituted a unilateral contract because it was highly
specific, stating the buyers would receive £100 if they did not recover in very definitive
language did not constitute a ‘mere puff’, like most other advertisement cases
Hence, it is clear that the additional requirement of being highly specific was the factor that
distinguished between the two cases
Very difficult, cannot be reconciled and justified
‘In light of modern technological developments, the rules on offer and acceptance are no longer
fit for purpose’ [2018]. Discuss.
Key Outline
Intended purpose of offer and acceptance rules
Difficulty in determining which rule applies to new form of communications
Even without modern technological developments, rules of offer and acceptance are not fit for
its purpose (can use this approach?)
Perhaps there is no need for doctrine of O&A, contract formation can be identified by other
doctrines such as consideration and ITCLR
*Traditionally a contract is formed where the acceptance is a mirror image of the offer. How
difficult is it to establish where this point is in English contract law?
Intro
‘Mirror image’ rule is that acceptance has to correspond to the offer [Butler Machine Tool v
Ex-Cell-O Corp]
Rule is important as it tells parties that
o The contract was indeed formed
o The precise moment in which the contract was formed
o What was agreed between parties
Not difficult to establish this point
At common law, any acceptance that attempts to vary the terms of the offer constitutes a
counter-offer interpreted as a rejection of the offer, instead of an acceptance [Hyde v
Wrench]
Difficult to establish this point
Slightly difficult, but can be reconciled and is justified
Hard to establish this point when cases have similar facts, but one constitutes contract
formation while another one does not inconsistency in case law
With regards to advertisements, general rule is that ads constitute an invitation to treat and not
an offer [Partridge v Crittenden] purpose is to protect party placing ad from incurring
liability in contracting with every single person willing to purchase
However, in Carlill v Carbolic Smoke Ball Company, court held that an ad can constitute a
unilateral contract
While they are indeed similar cases within the same category (of advertisements), this
exception is not arbitrary but was explicitly qualified by the court not inconsistency in case
law but rather careful distinction of facts
In Carlill, court said that the ad constituted a unilateral contract because it was highly
specific, stating the buyers would receive £100 if they did not recover in very definitive
language did not constitute a ‘mere puff’, like most other advertisement cases
Hence, it is clear that the additional requirement of being highly specific was the factor that
distinguished between the two cases
Very difficult, cannot be reconciled and justified
