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Sir it would be really helpful if u could shed some light on the scenario based question in which theres a confusion whether it was an OFFER or AN INVITATION TO TREAT.
ThanxIt’s an OFFER – no question. It’s effectively the same question as one asked by David Kelly some time ago about a car, an advert, “this is a serious offer”, “cash only”.
What I am surprised about is the element involving “the postal rule” In fact, I didn’t cover this sub-topic in my lectures this season believing that it was most unlikely ever to re-appear in exams. For those of you who missed out on this ( almost now irrelevant ) sub-topic, acceptance by post is effective as soon as the letter is put into the postal system through the proper channels, properly stamped and addressed. However, it only applies if both parties have believed that postal acceptance was an appropriate medium and clearly, in this case, it is not appropriate.
What happens if you assumed it was an invitation to treat? I initially put the answer as an offer but crossed it out, it was still readable however so the examiner will see my thought process.
Will I get no marks at all?
Hi Mike, sorry to quote Wiki again.
“Generally, advertisements are invitations to treat, so the person advertising is not compelled to sell to every customer. In Partridge v Crittenden [1968] 1 WLR 1204, it was held that where the appellant advertised to sell wild birds, was not offering to sell them. Lord Parker CJ commented that it did not make “business sense” for advertisements to be offers, as the person making the advertisement may find himself in a situation where he would be contractually obliged to sell more goods than he actually owned. In certain circumstances however, an advertisement can be an offer, a well known example being the case of Carlill v Carbolic Smoke Ball Company [1893] 1 QB 256, where it was held that the defendants, who advertised that they would pay anyone who used their product in the prescribed manner and caught influenza £100 and said that they had deposited £1,000 in the bank to show their good faith, has made an offer to the whole world and were contractually obliged to pay £100 to whoever accepted it by performing the requested acts.”
I would argue the advert was a lure to attract customers to the shop and as the advert doesn’t describe a particular rug then the rugs on display would be invitations as per Boots case.Hi Foxman. Now we really have a problem!
When I read the original post on this string I assumed the question referred to was from the English F4 exam …. and that question is different than the Global variant question 8.
So, let me address the 2 questions separately, firstly looking at the English F4 question 8.
In this question, Ali advertises in his local paper a “Once in a lifetime opportunity to own a handmade Persian rug for only £1,500 – cash only. This is a serious offer – the rug will go to the first person who accepts it – offer valid for one day only – today Saturday”
This is virtually the same question as one asked by David Kelly some time ago involving a car. In that question the advert was taken as an offer ( not an invitation! )
Foxman, if you are questioning the English variant situation, Partridge case is irrelevant. Ali’s advert is clearly an indication of willingness to be bound on certain terms and he specifically makes this clear in the advert’s wording. Your observation about “as the person making the advertisement may find himself in a situation ……” is not relevant. Ali is offering one rug and specifying that the first person who accepts his “serious” offer will be in contract.
Equally, Carlill is not relevant – Ali’s may be an offer to the World at large but is for a single item whereas Carlill was available to multi-persons to be able to accept – it was not for “the first person”
Your argument that the advert “doesn’t describe a particular rug” I believe is flawed. I imagine David Kelly intended this particular rug in the question to be a specific item rather than one out of stock and actually refers to it as “the rug”
If Ali’s advert had read something like “Ali’s Persian rugs, certain inventory items offered for sale, half price” then I would be inclined to go down the advert / invitation route. But it didn’t, so I’m not!
In the Global variant question 8, Ali received the delivery of an exceptional rug and actually wrote to his three favoured clients saying that “he was offering to sell the rug ( specifically THE rug, not A rug ) for $100,000”
This is not an advert, it is quite clearly “an Indication of willingness to be bound on certain terms” and therefore satisfies the requirements for being an offer.
But! I could be wrong with both of these explanations! We’ll need to wait and see what David Kelly says in the official answer
Isn’t it exciting 🙂
Thanks for the reply Mike, I was hoping that I wouldn’t have to wait until the spring.
I did sit the English variant and do not doubt that you are correct and your opinion will be matched by that of David Kelly while I resit the paper in June.
“Lord Parker CJ commented that it did not make “business sense” for advertisements to be offers, as the person making the advertisement may find himself in a situation where he would be contractually obliged to sell more goods than he actually owned.” As a general view of adverts I fail to see why it’s not relevant.
Ali is a dealer in Persian rugs which would suggest he has more than one, I know slightly less about Persian rugs than the law and an advert for a rug in a rug shop is vague. The other question I have not read but, an advert for a car would be for a specific car which can be easily distinguished from another by make and model and although I would have answered that question equally as wrong then my failing the exam is justified. I am curious why Ed would counter with a higher offer when he is the first to accept Ali’s original offer.
When sitting the exam I was deserted by common sense that an advert could actually be an offer and perhaps took a too literal view of your lectures that adverts as a rule were invitations except in certain circumstances like Carlill or for rewards.
A Happy New Year to you and yours and to all the contributors at Open Tuition.Hi Foxman
I think you’ll find that Das is the first to accept the offer. He has asked Ali to leave the offer open whilst he goes to arrange finance and Ali agreed. That act of “going to the bank to arrange finance” was, in the previous similar question involving the car, taken to be the consideration given by Das in exchange for Ali granting the option period.
I think / believe / hope / expect the printed solution will say that Das is the man with the first contract and that Ali will have to acquire a similar rug and sell to Das for £1,500.
But you are correct in that the question is not specific as to whether this rug in the question is specifically identifiable. It’s not even certain that das has actually seen the rug.
I’m also surprised that the question arises in the first place. Ali is a dealer so presumably has a stock of rugs. From the question:-
Bud saw the advert, but not the rug
Cil saw the advert and inspected the rug
Das – presumably saw the advert but no idea whether he saw the rug or not
Ed presumably saw the advert and the rug
The big question in my mind is ………………………
Why does Ali not sell a rug to each of them? His business “has been rather slow” per the question
The answer to the exam question is, I suggest:-
a) Ali’s advertisement is an offer blah, blah, blah for 4 marks
b) Bud has no chance – postal acceptance only applicable if both parties thought postal acceptance appropriate ( and here it obviously isn’t )
c) Cil has no chance – Ali has made a specific point of stating “cash only” so Cil’s offer of the full amount by cheque is a material alteration to the offer and as such is a counter-offer
d) Das DOES have a right of action and Ali will have to provide Das with an equivalent rug at a price of £1,500
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