Offer & Acceptance Problem - Sample Answer

I – Issues
R – Relevant law
A – Application
C – Conclusion

First identify the legal issues. These should be stated briefly in one sentence. There
is no need to enlarge on the issues, as this will be done in the application section.

Secondly, take each issue in turn and set out the relevant law relating to that issue.
All relevant cases and statutory provisions should be mentioned. Names of cases
and statutes should be italicised. In an exam, they should be underlined instead. It is
not necessary to give the facts of every case. The most important thing to set out is
the legal principle decided in that case.

Next, the law should be applied to the facts of the problem question. This may be
done immediately after you have set out the relevant law on each issue, or you may
wait until you have set out the law on all the issues, as has been done below. There
is no need to repeat the legal principles set out in the relevant law section.

Finally, state your conclusions. Again, there is no need to repeat what you have
already set out in the previous sections. The conclusion should be brief. If there is
more than one possible conclusion, set them all out.

* * * * *

Philip wants to sell his house and advertises it in the local newspaper at €370,000,
giving his telephone number. Jim sees the advertisement and rings Philip and makes
an appointment to see the house. Jim likes the house but cannot agree a price with
Philip, his highest offer being €367,000, while Philip insists on €370,000.

On the following Monday Jim receives a letter from Philip offering him the house for
€368,500 and saying that Jim can have until noon on Friday to think about it. On
Wednesday evening Jim meets his brother Garrett in their local. Garrett tells him that
Philip's son-in-law bought the house earlier that day for €367,000. Jim goes straight
home and writes a letter to Philip, accepting his offer to sell at €368,500. He posts the
letter immediately and Philip receives it on Thursday morning, but replies by return
saying "You are too late. I have sold the house to my son-in-law."

Advise Jim.

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The issues which arise in this problem are invitation to treat, counter-offer, the status of
a promise to keep an offer open, revocation and the postal rule.

* * * * *

An offer may be defined as a clear, unambiguous statement of the terms upon which
the offeror is prepared to contract should the offeree decide to accept. It is important
that the offer itself manifests an intention to be bound. If the offeror is merely feeling his
way towards an agreement, or initiating negotiations from which an agreement might
or might not result, there is no offer. Instead, it constitutes an invitation to treat, an
"offer to receive offers".

Over the years the courts have held that certain situations constitute invitations to treat
rather than offers; for example, goods in a shop window (Fisher v. Bell and Pim v.
Minister for Industry & Commerce), goods in a self-service shop (Pharmaceutical
Society of Great Britain v. Boots Cash Chemists), auctions (Payne v. Cave and Harris
v. Nickerson) and applications for tenders (Harvela v. Royal Trust Company of
Canada).

Advertisements will generally constitute invitations to treat. In Partridge v. Crittenden,

the plaintiff placed an ad in Cage and Aviary Birds which stated "Bramblefinch cocks
and hens, 25s each". He was convicted of the offence of offering for sale a live wild
bird. His conviction was quashed on appeal, where the court held that advertisements
were merely invitations to treat so that he could not have committed the offence of
"offering for sale".

Though as a general rule advertisements merely constitute invitations to treat, it is

possible for an advertisement to be construed as an offer, if the court feels that it
displays a definite intention to be bound (Carlill v. Carbolic Smoke Ball Co, Lefkowitz v.
Great Minneapolis Surplus Store and R v. Warwickshire County Council).

When an offer is accepted, it is essential that the offeree accept the exact terms of the
offer. If, instead of doing so, the offeree introduces a new term, he is making a counter-
offer, the effect of which is to destroy the original offer. In Hyde v. Wrench the
defendant offered to sell his farm for £1,000. The plaintiff agreed to buy, but at £900. A
few weeks later the plaintiff accepted the offer of £1,000. The court held that there was
no contract. By stating he would buy the farm for £900 the plaintiff had made a
counter-offer, which destroyed the original offer so that it could no longer be accepted.
Another example of a counter-offer is the case of Wheeler v. Jeffrey.

If the offeree intends to accept the offer as it stands, and looks for some further
information about the offer, he does not make a counter-offer but a request for
information which does not destroy the offer. A good example of this is found in
Stevenson v. McLean.

In general, the offeree's acceptance of the offer must be communicated to the offeror.
The postal rule however is an exception to this. If the acceptance is posted,
acceptance is complete the moment the letter is placed in the post box. The postal rule
was first set out in Adams v. Lindsell. It applies even if the letter never arrives
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(Household Fire Insurance v. Grant) though it will not apply if the letter was not
properly stamped or addressed, if it was unreasonable at the time to use the post or if
the offeror expressly or impliedly stated that the rule would not operate (Holwell
Securities v. Hughes and Kelly v. Cruise Catering).

An offeror is entitled to revoke his offer at any time until it has been accepted. In The
Guardians of the Navan Union v. McLoughlin, the defendant was held to be entitled to
revoke his offer because the plaintiff’s acceptance had not yet been communicated to
him. Even if the offeror promises to keep his offer open for a certain period, he is still
entitled to revoke. In Routledge v. Grant the offeror promised to keep his offer open for
six weeks but revoked after three. The court held that he was entitled to do so.

An offeror's promise to keep his offer open is not legally binding because it is
unsupported by consideration. If the offeree provided even a nominal consideration
(eg. €1) for the promise to keep the offer open then the offeror cannot not revoke.

It is essential that revocation be communicated to the offeree. The postal rule does not
apply to revocation, therefore a letter of revocation does not take effect until it is
received by the offeree (Byrne v. Van Tienhoven). Revocation need not necessarily be
communicated by the offeror. In Dickinson v. Dodds the defendant offered to sell his
house to the plaintiff, and promised to keep the offer open for two days. The following
day a third party told the plaintiff that the defendant had sold to someone else. The
plaintiff immediately purported to accept the offer. The Court of Appeal held that the
offer had been validly revoked and could not therefore be accepted by the plaintiff. The
facts of Cartwright v. Hoogstoel also involved revocation by means of a third party. It is
difficult to know exactly when a third party can validly revoke an offer. If the information
comes from a reliable source it will presumably operate to revoke the offer. On the
other hand, will mere gossip be sufficient? This is a question of fact, to be decided on
the circumstances of every case.

* * * * *

Philip's advertisement in the local paper is an invitation to treat. It merely gives his
telephone number and a price; there is nothing more that might transform it into an
offer. Jim then makes an offer of €367,000 which is destroyed by Philip's counter-offer
of €370,000.

Philip then makes a fresh offer of €368,500 and gives Jim until noon on Friday to think
about it. The fact that Philip impliedly promised to keep the offer open is irrelevant here
because his promise was not supported by consideration. He is entitled to revoke
before noon on Friday.

Two days later Jim hears from his brother Garrett that the house has already been
sold. Does this constitute a revocation of Philip's offer? An offer can be revoked at any
time prior to acceptance, and revocation need not necessarily be communicated by the
offeror. The validity of the revocation in this case depends on Garrett's reliability. If he
were a notorious gossip, with a tendency to get his facts wrong, then the revocation
would not be effective. If, on the other hand, he were reliable and truthful the offer
would be validly revoked.
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If a court were to find that Garret was an unreliable source, the offer would not have
been revoked on Wednesday night and would therefore have been capable of
acceptance when Jim hurried home to write to Philip. According to the postal rule, the
acceptance would have taken effect the moment the letter was posted, provided that it
was reasonable to use the post at the time. Since Philip’s counter-offer was made by
post, it was perfectly reasonable for Jim to use the post as a means of communication.
This means that Jim would have had a valid contract to buy the house that night.
Philip's letter telling Jim that the house had already been sold would not have operated
as a revocation of his offer because it would already have been accepted.

* * * * *

In conclusion, I consider that the outcome of this problem depends on Garrett. If he is

a trustworthy, reliable source, then the offer was revoked on Wednesday night in the
pub and there is no contract. If he is not reliable, then a contract came into existence
between Jim and Philip the moment Jim posted the letter on Wednesday night.

Bibliography

Cases

Adams v Lindsell (1818) 1 B & Ald 681

Byrne v Van Tienhoven (1880) 5 CPD 344
Carlill v Carbolic Smoke Ball Company [1893] 1 QB 256
Cartwright v Hoogstoel (1911) 105 LT 628
Dickinson v Dodds (1876) 2 Ch D 463
Fisher v Bell [1961] 1 QB 384
Harris v Nickerson (1873) LR 8 QB 286
Harvela v Royal Trust Company of Canada [1986] AC 207
Holwell Securities v Hughes [1974] 1 All ER 161
Household Fire Insurance v Grant (1879) 4 Ex D 216
Hyde v Wrench (1840) 3 Beav 334
Kelly v Cruise Catering [1994] 2 ILRM 394
Lefkovitz v Great Minneapolis Surplus Store (1957) 86 NW 2d 689
Minister for Industry & Commerce v Pim Brothers [1966] IR 154
Partridge v Crittenden [1968] 2 All ER 421
Pharmaceutical Society of Great Britain v Boots Cash Chemists [1952] 2 QB 795
R v Warwickshire County Council [1993] AC 583
Routledge v Grant (1828) 4 Bing 653
Stevenson v McLean (1880) 5 QBD 346
The Guardians of the Navan Union v McLoughlin (1855) 4 ICLR
Wheeler v Jeffrey [1921] 2 IR 395

Books

Clark, Contract Law in Ireland, 8th edition (Dublin: Round Hall Press, 2016)

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Enright, Principles of Irish Contract Law (Clarus Press, 2007)
Keenan, Essentials of Irish Business Law, 6th ed. (Gill and Macmillan, 2012)