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In this assignment I will be evaluating if Simon has a binding contract with the bookshop. I will be focusing on the following issues: Invitation to treat, offer, acceptance and the remedies.

Firstly, in this case the advertisement in the catalogue was an Invitation to treat not an offer. Most of the time advertisement’s in a catalogue are only an Invitation to treat. An offer is said to be “An expression of willingness to contract on certain terms made with the intention that it shall become binding as soon as it is accepted by the person to whom it is addressed” stated by Treitel. As seen in the case Partridge v Crittenden were there was an advertisement in a magazine for selling bramblefinch cocks and bamblefinch hens it was called ‘Cage and Aviary birds’. He was charged with unlawful offering bamblefinch hen under the protection of birds act 1954 under section 6(1). The British Car Auctions v Wright case was about a motor vehicle and depending on ‘offer to sell’. As seen in these cases the language that is used is very vague and not very detailed and not descriptive. However, the Carlill v Carbolic smoke ball case advertisement was an offer not Invitation to treat as it involved in receiving a £100 reward by the company to anyone who was still infected by the influenza after having used the correct daily dosage of the smoke ball. Here the advertisement was delivered to be very express and detailed about the reward, showing the buyer that what is said in this advertisement is an offer and not an invitation to treat. A contract is an agreement between two parties that is enforced by the law.

An invitation to treat is only when one party allows another party to seek an offer depending on the goods that they may be interested in, which cannot be accepted it can only be seen as an offer made by one party. Nonetheless, if there is an offer and an acceptance to that offer there would be a binding contract between two parties which leads to legal intentions formed between the them. This means that if the contract is breached by either side of the party, the case can be taken forward to the court, where a Judge decides the conclusion of the claim. Acceptance by both parties must be communicated thoroughly to one another and confirm that both parties agree on the terms of the contract. The acceptance must therefore be communicated to the offeree, in this case to Simon which was never done and match the conditions of the offer.

Goods on a shelf is only an Invitation to treat, which is similar to an advertisement in a magazine or catalogue. In Fisher v Bell the seller was convicted of selling a flick knife, but the goods that are displayed in the shop are merely an invitation to treat by the seller not an offer; taking the goods on the shelf to the cashier desk with payment which creates an offer. This case is also comparable with the Pharmaceutical Society v Boots which concerned the sale of medicines. This is similar to Ahmed’s situation, he saw the book on display (or in the advertisement) which are both an invitation to treat, then Ahmed went to the bookshop and collected the book and took it to the cashier desk with the money in order to purchase the item, creating an offer to Jenny. When they accept the money, a binding contract is formed between the bookshop and Ahmed. Moreover, Simon’s case is more similar to Partridge v Crittenden’s case due to the use of words “special offer” this type of language is very unclear and less express in the advertisement than in Carllil’s case. Simon’s letter and voicemail are only offers to the bookshop which were never accepted.

Secondly, neither of Simon’s offers were accepted. The general rule for acceptance is that when the offer has been confirmed it creates a binding contract between the two parties. Silence does not amount to acceptance as seen in the Felthouse v Bindley case were it involved an uncle and a nephew making a deal about a horse. The uncle wanted to buy the horse and nephew told the auctioneer not to sell the horse but the auctioneer forgot, and sold the horse to another customer (third party) during the auction. The uncle sued the auctioneer for selling ‘his’ horse not the nephew because it was not the nephew’s fault. It was held that there was never a contract between the nephew and the uncle so there was no ownership, as the nephew never replied to the letter. This contrasts with Simon’s case as he offered to buy the rare first edition book from the bookshop, but wrote a letter and left a voice mail which were never replied to. Offers and acceptances communicated from a distance can arise issues rather than face to face deals that are made. Jenny’s silence on this letter means that there is no contract formed and by selling the book to Ahmed there was no breach of contract, if Simon sued the bookshop it would not be effective as there is no binding contract between the two parties. Linnett V Halliwells was a similar case problems to the Felthouse case. 

Acceptance must be communicated for there to be a contract as shown in the Entores v Miles Far East Corp. case, where the rule about posts is different to the rule about acceptance through communication between two parties. The contract is made when the acceptance is received by the offeror, this was between a Dutch and English company about telex communications. As soon as posting a letter an acceptance will be created and a contract will be formed between the two parties; this is known as the postal rule. Unfortunately, there is an issue with postal rule. During the post being sent to the other party there is a period where both of the parties are in the dark from one another this causes both of the parties to be uncertain if they have assembled a contract. Like the case Adams v Lindsell; no acceptance had been communicated as a confusion occurred, between the two parties for selling wool, this was when L wrote an offer to sell wool to P and requesting a reply “in course of post” indicating postal rule being addressed. L’s letter was wrongly addressed and P did not receive the letter until a few days later, by that time they sold the wool to a third party. It was held that judgement is for plaintiff. This reveals to Jenny’s silence not amounting in being effective. The postal rule does not apply as the letter from Jenny was never written yet alone sent. Another similar case is Korbetis v Transgain Shipping BV. 

On the other hand, if Jenny wrote the letter and posted it there would be an automatic contract being bound by both the parties, even if the letter never got to Simon or was wrongly addressed and the letter was still posted by Jenny there would be a remaining contract as the rule is as soon as posted an acceptance is created, as an acceptance would be valid. Though that is not the case in this situation. If Jenny and Ben’s voicemail machine was not broken and they were to hear the voicemail that Simon left on the machine, and if Jenny had left a message to him accepting his offer for the book there would be a binding contract between them both and selling the book to Ahmed would be a breach of that contract, between Simon and the bookshop.

In Henthorn v Fraser was a case which concerned postal rule which was held in the court of appeal. Lord Herschell argued: “Where the circumstances are such that it must have been within the contemplation of the parties that according to ordinary usage of mankind, the post might be used as a means of communicating the acceptance of an offer, the acceptance is complete as soon as it is posted.” It was concluded that the claimant was entitled to specific performance, by the decision of the court of appeal. Therefore, there is no binding contract as neither of Simon’s offers have been accepted, by the bookshop. Byrne v Leon’s case was about the acceptance being received before the letter was posted. The general rules for acceptance are above as mentioned. There would of been a breach of contract between Simon and the bookshop if there was a binding contract between Simon and the bookshop as they have sold the book to Ahmed another customer. However, there was never a contract between Simon and the bookshop, thereby there would not be breach of contract. A case in Australia Robertson v Matin hearing was in high court of Australia in Melbourne; which concerned the sale of goods. Another case is Spencer v Harding, it was concluded that use of words to make a statement does not make an offer, thereby does not establish a binding contract.  

If Simon’s offer was accepted by the bookshop and Simon went to pick up the book but changed his mind later and said that he wanted to buy it for less (£400) however, Jenny did not accept the offer. Simon could not sue the bookshop as there would never have been a contract between them. Jenny agreed on the £500 and not £400 thereby, there is no contract and Simon cannot claim for a breach, as Jenny never agreed to sell the book for less. If Jenny agreed on Simon’s new offer £400 for the rare book there would be a binding contract as Jenny agreed to sell the book for that amount even though the price was reduced. 

For the contract to be binding there needs to be consideration in the offer. The Consideration can sufficient but not needed to be adequate and in the past and i m, in order to be considered. Simons offer for the book was sufficient and also adequate. Simons intentions were to be legally bound to the bookshop, but this never happened as the bookshop never accepted Simons offers. 

In Hyde v Wrench it regarded a counter-offer. This means that one party changes the first offer which cancel’s the original offer. Here Wrench offered a £1000 Luddenham farm to Hyde which Hyde declined. Wrench reached out to Hyde saying that £1000 is his last offer on 6th of June. Hyde replied saying that he wants to buy it for £950 on 8th of June. Wrench decline his offer and on the 29th of June Hyde wrote that he will buy the farm for £1000, Wrench declined that offer and decided to not to sell the farm. Hyde sued him for breach of contract. Furthermore, it was held that there was never an existing binding contract between the two parties therefore. There was no contract between them so a breach of contract did not occur. Simon made a counter- offer to the bookshop by asking if he could buy the book for £500, Jenny agreed that they would sell the book for the £500 that was offered but never confirmed it, then Ahmed another customer bought the book for £600, on the same day this means that the bookshop and Ahmed have a binding contract as Ahmed’s offer was better suited to them. Thereby, they accepted Ahmed’s offer and they did not reply to Simon’s offer stating that there is no acceptance to Simons offer by the bookshop.  

If the contract was breached between Simon and the bookshop the court may find the remedy to be equitable remedies or damages. In this case it cannot be damages, what is meant by this is that money is given to compensate the other party’s specific performance. in Heathcote Ball v Barry case the claimant had bided the only bid at an auction but without a reservation. The claimant bided each for £200, despite that the auctioneer had declined to sell the engine analyzers at that price. The Claimant took an action and sued the auctioneer for a breach of contract claiming that there was a worth of £27,000 damages. This was held by Judge Phill LJ stating that the ‘claimant was entitled to the damages’. This is due to when an auction occurs without reserve there is a unilateral offer by the bidder to the auctioneer which is accepted as the highest bid. In this case Ahmet’s offer was more than Simons offer for the book.
 The court may order in this case the remedy is to be equitable remedies by specific performance; meaning the court orders someone to do something they said they will do. The court may order specific performance by making the bookshop monitor and seek another one of the rare first edition books that Simon wanted to purchase. As damages would not be suitable in this case. If Simon did not do anything wrong which he didn’t then the court will be more likely to order specific performance in favour for Simon, against the bookshop.

All together the advertisement in the catalogue was only an Invitation to treat and not an offer. Secondly, Simon’s letter was an offer not acceptance. Simon’s offers were not accepted by the bookshop as there was no reply to his letter or voicemail. Therefore, there is no binding contract between Simon and the bookshop. If Jenny had written and posted the letter there would be a valid acceptance and binding contract between the two parties as the postal rule would apply in this matter and selling the book to Ahmed would be a breach of that contract. Thereby, the court would present certain remedies against the bookshop for Simon. In this matter the remedy would be specific performance as the bookshop is ordered by the court to find Simon that exact same rare first edition of “fly fishing in the wye” book that he wanted to buy. In Dickinson v Dodd’s case it was said that there is a house offer open until 9 am on Friday 12th June. Mr. Dickinson ran into Mr. Dodd’s in the Railway at 7 am on Friday the 12th and he said that he accepts the offer, however Mr. Dodd’s said that the acceptance was too late, Mr. Dickinson sued Mr. Dodd’s for a breach of contract. there was no consideration given and that the Plaintiff had failed to show any type of binding contract between himself and Mr. Dodd’s. As James LJ said “being a mere nudum pactum, was not binding”.