英国合同法复习资料

英国合同法复习资料 -CAL-FENGHAI-(2020YEAR-YICAI)_JINGBIANLecture 1 Offer and acceptance IWhat is an offer?Key principles: An offer is a statement which objectively indicates that the offeror is prepared900 pounds”P:“We agree to buy for the sum of 900 pounds asked by you” D refused to sell. Held: D is not b ound. P’s first telegram asked two questions and D answered only the second. D had made no promise, express or implied to sell. A statement of the minimum price at which asell the house to you” and invited Gibson to fill in a form. Gibson filled in but council refused to sell.Held: No contract. The words “may be prepared to sell” are fatal to this. The Council did not make an offer but only invited offers and the tenant made a firm offer which was rejected by the Council. The tenant’s application was an offer rather than an acceptance.Recognized instances of invitations to treatAdvertisementsKey principles: Advertisements are normally invitations to treat because it is clear that theeach. No details as to quantity.Held: The ad did not amount to an offer to sell.after using the smoke ball as directed and that to show its sincerity it had deposited £1000 in a bank account. P used the smoke ball, but nevertheless caught flu.Held: the ad was an offer to the world which was accepted by P when she used the smoke ball as directed. She was entitled to the £100.Shop displaysKey principles: the display of goods for sale on a supermarket shelf is an invitation to treat, andHeld :As a general rule, display of flick knife in a shop window is an invitation to treat and notsupervision of a registered pharmacist. In this shop, the pharmacist could refuse to allow the purchase at the cash desk.Held: Putting up goods on the shelves of a self-service shop was an invitation to treat. There was no sale until the shopkeeper accepted the customer’s offer to buy. The main practical consequence of this are under the law of contract, shops are not bound to sell goods at the price indicated and a customer cannot demand to buy a particular item on display.TendersKey principles: a circular inviting the submission of tenders is normally an invitation to treat andsold at a discount in one lot. The plaintiff argued that the defendant has to sell to the highest tender.Held: For the defendant. An offer for sale in the tender is just an invitation to treat. There iscompanies to cover its employees’ medical and life insurance.Held: It was confirmed that an invitation to tender is no more than an intention to receive bids. Situations where there is a contractual obligation to accept the most competitive bidKey principles: an invitation to submit tenders may amount to an offer where it is clear that the seller intends to sell to the highest bidder. (The invitation to tender may amount to an offer of“we bind ourselves to accept (the highest) offer. P bid $2175000 and D2 bid $2100000 or $101000 “in excess of any other offer. D1 believed that they were bound to accept the bid of D2, as being the highest bid.Held: the invitation to tender amounted to an offer to sell to the highest bidder, however, the “referential” bid of the type adopted by D2 was not permissible in a transaction of this kind and therefore D1 was bound to accept the P’s bid. (the third party’s bid was a referential bid and was not a valid offer.)An obligation to consider tendersKey principles: an invitation to submit tenders is an offer to open and consider all confirmingletter stated that ’No tender which is received after the last date and time specified’ would be considered. P’s tender was posted by hand in the D’s letter box before the deadline expired, but D’s staff did not empty the box and the P’s tender was not considered.Held: all tenders submitted which complied with the tendering procedure would be opened and considered together with the other conforming tenders. The invitation to tender was aunilateral offer was accepted by the submission of a tender. The court held that the defendants were contractually bound to consider the P’s tender.AuctionsKey principles: an ad for an auction is normally an invitation to treat, and the bid is the offer which can be accepted by the auctioneer. In an auction, the auctioneer’s request for bids is anere to be sold at an auction sale. The P attended the sale to buy the office furniture, but it was withdrawn from the sale. The P claimed that the ad amounted to an offer to sell the furniture which he accepted by attending the auction.Held: the ad did not amount to a promise to sell the furniture.the price of the goods, D refused to receive the money or to deliver the goods.Held: Where an auction is made “without reserve”, the au ctioneer is under a contractual obligation to sell it to the highest bidder. An ad to hold an auction “without reserve” would amount to an offer to sell to the highest bidder.Legislation: Sale of Goods Ordinance S60•In the case of a sale by auction-•(a) where goods are put up for sale by auction in lots, each lot is prima facie deemed to be the subject of a separate contract of sale;•(b) a sale by auction is complete when the auctioneer announces its completion by the fall of the hammer, or in other customary manner. Until such announcement is made any bidder may retract his bid;•(c) where a sale by auction is not notified to be subject to a right to bid on behalf of the seller, it shall not be lawful for the seller to bid himself or to employ any person to bid at such sale, or for the auctioneer knowingly to take any bid from the seller or any such person. Any sale contravening this rule may be treated as fraudulent by the buyer;•(d) a sale by auction may be notified to be subject to a reserve or upset price, and a right to bid may also be reserved expressly by or on behalf of the seller.Lecture 2: Offer and AcceptanceUnilateral Contracts: In a unilateral contract, the offeror performs his part of the obligation when he makes the offer and if the offeree wishes to enter into the contract, the offeree must perform his part. Examples of unilateral contracts: Reward cases; “If” contractsprovide the required articles for 12months. P placed orders, all of which were carried out except the last one. D argued that he was not legally obliged to supply the goods, and so was not in breach of contract.Held: the agreement to supply for a year was a standing offer which was accepted each time an order was placed. A promise to supply as much as a buyer may order becomes binding upon the promisor when the buyer makes an acceptance. The court reasoned that the fact that the contract may have been unilateral in nature did not prevent it from being binding. [In terms of consideration, the redistribution of the pre-contractual risks was sufficient consideration for contract formation.Offer in Unilateral Contractspublished advertisements in the Pall Mall Gazette and other newspapers on November 13, 1891, claiming that it would pay £100 to anyone who got sick with influenza after using its product according to the instructions set out in the advertisement. And £1000 is deposited with the Alliance Bank, Regent Street, showing our sincerity in the matter. Mrs Louisa Elizabeth Carlill saw the advertisement, bought one of the balls and used three times daily for nearly two months until she contracted the flu on January 17, 1892. She claimed £100 from the Carbolic Smoke Ball Company.Held: Bowen J stated that a unilateral contract was not made with all the world, it is an offer made to the whole world and the contract was made with a limited portion of the public who came forward and perform the condition on the faith of the advertisement.Acceptance in unilateral contractIn unilateral contracts, performance of the conditions of the offer amounts to acceptance; there is no requirement of actual communication.Communication of acceptanceKey principles: in unilateral contracts, no need to communicate acceptance to the offeror.The relevance of motive in acting on the terms of a unilateral offerKey principles: motive of the offeree is irrelevant provided the offeree does what is required byWalter Carwardine was murdered in Hereford. The plaintiff, Mrs Williams, gave evidence at the Hereford assizes against two suspects, but did not say all she knew. The suspects were acquitted. On April 25, 1831, the victim's brother and defendant, Mr Carwardine, published a handbill, stating there would be a £20 for...Whoever would give such information as would lead to the discovery of the murder of Walter Carwardine. In August, 1831, the Mrs Williams gave more information which led to the conviction of two men (including a Mr John Williams, the plaintiff's husband). She claimed the reward. Mr Carwardine refused to pay. At the trial her motives were examined. It was found that she knew about the reward, but that she did not give information specifically to get the reward.Held: P’s motive is not material.The Court helds, that the plaintiff was entitled to recover the £20. The advertisement amounted to a general promise or contract to pay the offered reward to any person who performed the condition mentioned in it, namely, who gave the information.Two judges clearly stated that motives were irrelevant. Littledale J said, "If the person knows of the handbill and does the thing, that is quite enough." Patteson J said "We cannot go into the plaintiff's motives."When the act was done in ignorance of the offerKey principles: There cannot be assent without knowledge of the offer; and ignorance of the offer is the same thing whether it is due to never hearing of it or forgetting it after hearing. Under the situation where the act was done in ignorance of the offer(completely don't know,wanted to compel the Crown to pay a reward it had offered for information leading to the conviction of a murderer. The claimant gave the information. But he gave it while he was under investigation himself for murder. He told the police "exclusively in order to clear himself". It was uncertain whether he was thinking about the reward at the time he coughed up the information.Held: No contract. The acceptance must be communicated. There cannot be assent without knowledge of the offer; and ignorance of the offer is the same thing whether it is due to never hearing of it or forgetting it after hearing…”Revocation of an offer in a unilateral contractKey principles: once the offeree has begun to perform the terms of an unilateral offer, it could not be revoked by the offeror but it would cease to bind him if the offeree left it incompleteand unperformed, unless such performance is unnecessary. (Abbott v Lance (1860) Legge’s Newpaid the mortgage, the house would be theirs. They started to do so, and then split. The dad died. He left the house to his widow. She brought an action to eject the daughter in law. Held: P acted on the promise. D cannot eject them in disregard of it. The father’s unilateral offer could not be revoked after they had started to pay.He said there was no need to imply an obligation to complete the payments. The limit is where the daughter stops paying, and the father’s est ate has to pick up the bill. Then she would lose her right to stay. The couple were on a license, short of a tenancy but a contractual, or at least equitable right to remain, which would grow into good equitable title as soon as the mortgage was paid.When can the offeree claim the benefits promised by the offerorKey principles: The reward or commission is only paid to the offeree once all the terms of theat least £185000 each, then he would be paid a commission. Willing purchaser was found by the P but the D did not want to complete the transaction.Held: P was not entitled to the commission because it is only payable on completion of sale. Lord Russel: the agent took the risk in the hope of a substantial remuneration for a comparatively small exertion.Bilateral contractBilateral contracts: in bilateral contracts, there is an exchange of promises (offer and acceptance) The offer is made to an identified person or party.Offer in bilateral contractThe offer is made to an identified person or partyAcceptance in Bilateral ContractsRequirements of a valid acceptanceKey principles: the acceptance must be unconditional and unequivocal.(any change in the contract is not allowed generally Mirror rule)In bilateral contracts, the acceptance of the offer must be communicated by the offeree or his agent. Actual communication is required here.Examples of waiver of communication of acceptanceWhere acceptance is made by post, the offeree doesn’t have to have actual communication with the offerorSilenceKey principles: silence cannot normally be prescribed as a mode of acceptance.Sizing Europe off his nephew, John Felthouse. After a letter from the nephew about a previous discussion in buying the horse, the uncle replied saying, "If I hear no more about him, I consider the horse mine at £30 and 15s." The nephew did not reply. He was busy at auctions on his farm in Tamworth. He told the man running the auctions, William Bindley, to not sell the horse. But by accident, Bindley did. Uncle Felthouse then sued Bindley in the tort of conversion - using someone else's property inconsistently with their rights. But for the Uncle to show the horse was his property, he had to show there was a valid contract. Bindley argued there was not, since the nephew had never communicated his acceptance of the uncle's offer.Held: the nephew had not communicated his intention and had not done anything to bind himself, so there was no valid acceptance.Acceptance must be communicated clearly and cannot be imposed due to silence of one of the parties. The uncle had no right to impose a sale through silence whereby the contract would only fail by repudiation. Though the nephew expressed interest in completing the sale there was no communication of that intention. Exception: When silence would amount to acceptancea.when the offeree has taken benefit under the contractb.when the offeree agreed that his silence would constitute acceptancenational insurance. The managing director, Mr ffooks, met with Mr Polland, from the Inland Revenue and said he would pay future tax as it fell due and the arrears at £1000 a month. Mr Polland said he would have to check and would contact the managing director if it was unacceptable. Selectmove Ltd heard nothing till a £25,650 notice came in and a threat of a wind-up petition. Mr ffooks subsequently claimed that the Revenue had said he could repay less. The High Court held that even if that were found to be true, Mr Polland had not bound the Revenue, and there was no consideration for the varied agreement anyway.Judgment: Peter Gibson LJ (Stuart-Smith LJ and Balcombe LJ concurring) said that the House of Lords case, Foakes v Beer precluded any variation of the agreement to repay the debt without good consideration, despite the recent decision in Williams v Roffey Bros Ltd. Peter Gibson LJ state ‘it is clear… that a practical benefit of that nature is not good consideration in law’. He felt bound by Foakes and could not apply Roffey to leave it without any application, despite seeing the 'force of argument'. It is the offeree who waives his right.c.when the offeree has accepted the offer by his conduct - See Brogden v MetropolitanCompany with coals for a number of years. Brogden then suggested that a formal contract should be entered into between them for longer term coal supply. Each side's agents met together and negotiated. Metropolitan's agents drew up some terms of agreement and sent them to Brogden. Brogden wrote in some parts which had been left blank and inserted an arbitrator who would decide upon differences which might arise. He wrote "approved" at the end and sent back the agreement documents. Metropolitan's agent filed the documents anddid nothing more. For a while, both acted according to the agreement document's terms. But then some more serious disagreements arose, and Brogden argued that there had been no formal contract actually established.Judgment: The House of Lords (The Lord Chancellor, Lord Cairns, Lord Hatherley, Lord Selborne, Lord Blackburn, and Lord Gordon) held that a contract had arisen by conduct and Brogden had been in clear breach, so he must be liable. The word "approved" on the document with Brogden's name was binding on all the partners, since Brogden was the chief partner, even though the standard signature of “B. & Sons” was not used. A mere mental assent to the agreement's terms would not have been enough, but having acted on the terms made it so. Lord Blackburn also held that the onus of showing that both parties had acted on the terms of an agreement which had not been, in due form, executed by either, lies upon person alleging such facts.Communication of acceptance in Bilateral ContractsKey principles: It must be by the offeree or his agent. Communication of acceptance by a thirdappoint him. One of them, acting without authority, told the plaintiff he had been accepted. Later the managers decided to appoint someone else. The claimant brought an action alleging that by breach of a contract to employ him he had suffered damages in loss of salary.Held: communication not valid. The county court judge held that there was no contract as there had been no authorized communication of intention to contract on the part of the body, that is, the managers, alleged to be a party to the contract.Prescribed method of acceptanceKey principles: The method of acceptance prescribed by the offeror must be followed by the offeree. If he fails to do so, as a general rule, such acceptance does not give rise to an agreement.ExceptionKey principles: Where no method of acceptance has been prescribed, the offeree must follow a reasonable method.a)Where the parties are at arm’s length, the offeree should follow the same method as used by the offeror to send his offer or more expeditious method.b)Sometimes the method of acceptance prescribed may not be the sole method of acceptance. In that situation, an alternative method may be considered appropriate.Manchester Diocesan Council of Education v Commercial & General Investments Ltd. [1970] 1 WLR 241 p68.Facts: MD called for tenders relating to property. C&G submitted a tender (offer to buy). The tender stated that acceptance was to be notified to the person whose tender was accepted by letter sent ‘by post addressed to the address given in his tender’. MD decided to a ccept C&G tender and sent their acceptance to the CG's solicitor, which was not the address given in the offer. C&G knew of this acceptance.Held: Clause 4 does not say that posting a letter addressed to the D shall be the sole permitted method of communicating an acceptance. The parties became contractually bound. The method of acceptance prescribed in the tender was not mandatory - here the offeror was made aware of the acceptance by an equally effective method and thus the acceptance was effective.“The Postal Rule”:Where post is the prescribed method for sending an acceptance or is reasonable to use post, the acceptance is deemed to be complete when the letter is posted.Key principles: The offeror is bound by the acceptance even though the letter of acceptance isto the plaintiffs offering to sell them certain fleeces of wool and requiring an answer in the course of post. The defendants, misdirected the letter so that the plaintiffs did not receive it until 5 September. The plaintiffs posted their acceptance on the same day but it was not received until 9 September. Meanwhile, on 8 September, the defendants, not having received an answer by 7 September as they had expected, sold the wool to someone else. The defendants argued that there could not be a binding contract until the answer was actually received, and until then they were free to sell the wool to another buyerHeld: Law J said that if that was true it would be impossible to complete any contract through the post; if the defendants were not bound by their offer until the answer was received, then the plaintiffs would not be bound until they had received word that the defendants had received their acceptance, and this could go on indefinitely.[1] Instead it must be considered that the offerors were making the offer to the plaintiffs during every moment that the letter was in the post. Then when the Offeree has placed his acceptance in the post there is a fictional meeting of minds, which concludes the offer and gives effect to the acceptance. The acceptance did not arrive in course of post strictly speaking (all parties understood in course of post to refer to 7th of September). But because the delay was the default of the defendant itletter never arrived.Held: As soon as the letter of acceptance is posted there is a binding contract, even if the letter is lost or delayed. The post office acts as the agent for both parties.The postal rule of acceptance does not apply:Where the letter of acceptance is wrongly addressed or insufficiently stamped;the said option shall be exercisable by notice in writing to D at any time within 6 months from the date hereof’ The letter was posted, properly addressed and stamped but w as never actually delivered to D.Held: The words ‘notice’ required actual communication of the acceptance, and so no contract came into force.Lecture 3: Offer and AcceptanceMethods of acceptanceC ontracts through courier services: such as DHL, Federal Express are used for making contracts Arguably, the postal rule of acceptance should apply to an acceptance sent by courier service, i.e. it is effective once the letter of acceptance is handed over or to the courier service Contracts made by instantaneous methods: such as telephone, telex, fax and email.In the case of an acceptance sent by telephone, telex or fax, it is clear that the acceptance becomes effective only after it is received by the offeror; the position is not so clear with regard to an acceptance by email.Acceptance by telephoneKey principles: The receipt rule--- acceptance takes place when the words of acceptance are clearly heard by the offeror.In terms of the conclusion of the contract:Time: the moment when the offeror receives the acceptancefrom the defendant. The defendant sent a telex in return accepting the offer. A contract was made when the defendant’s acceptance was received by the plaintiff in London.Held: the contract was only complete when the acceptance was received by P in London. The receipt rule is also applied in the situation of fax. So the time when the K is concluded is the moment when the P received the acceptance. the place where the K is concluded is London. So the jurisdiction of the contract belongs to the court in London instead of Amsterdam.Fault-based conceptLord Denning introduced a “fault-based” concept to determine the existence of a contract purported to have been made by telephone.a) offeror’s fault: where the offeror does not, due to his own fault, hears the words ofaccep tance; he is bound by the contract as he will be “estopped from saying that he did not receive the message of acceptance.”b) offeree’s fault: The offeree has the duty to ensure that the words of acceptance are heard by the offeror. If the line goes dead or becomes indistinct and the offeree knows this, the offeree must repeat the message making sure that the offeror has got the correct message.Where the words of acceptance uttered by the offeree are not heard by the offeror (neither due to his fault nor d ue to the offeree’s fault), there would be no contract.c) nobody’s fault: where the words of acceptance uttered by the offeree are not heard bt the offeror(neither due to offeror;s fault nor due to offeree’s fault), there would be no K. Exception to the receipt rule----telex or faxKey principles: Where an acceptance bt telex or fax is sent outside office hours, the receipt ruleHeld: It was held that the communicator could not have expected the recipient to have received the message, which was sent late Friday evening at that time. Instead it was reasonable to hold that it was actually communicated on Monday morningSupplement to the receipt rulea)intention of the partiesb)sound business practicean English company, accepted by a telex sent from London to Vienna, the terms of sale offered by the sellers, an Austrian company. The contract was not performed, and the buyers issued a writ claiming damages for breach of contract. The buyers contended that they were entitled to leave to serve the writ out of the jurisdiction under RSC, Ord.11, r.1(1)(a) on the ground that (i) the case came within para.(f) because the contract "was made within the jurisdiction" on the basis that, by analogy with the rules relating to the acceptance of an offer by post or telegram, acceptance of an offer by telex concluded a contract at the time and place the telex was sent; or (ii) the case came within para.(g) because the writ was "in respect of a breach committed within the jurisdiction.".Held: the contract was made in Vienna since in the case of instantaneous communications that was where the acceptance was received.Acceptance by Faxwho sent his acceptance by fax to Taiwan.Held: Following Entores and Brinkibon that the contract was concluded in Taiwan.Acceptance by emailsKey principles: common law rule: It is not clear when an email acceptance takes effect. However, the receipt rule applied to acceptances made by telephone, telex or fax seems to be preferableStatutory rule: Also note S19 of the Electronic Transactions Ordinance (Cap. 553) which states as follows:•“Unless otherwise agreed between the originator and the addressee of an electr onic record, an electronic record is sent when it is accepted by an information system outside the control of the originator or of the person who sent the electronic record on behalf of the originator.•(2) Unless otherwise agreed between the originator and the addressee of an electronic record, the time of receipt of an electronic record is determined as follows-•(a) if the addressee has designated an information system for the purpose of receiving electronic records, receipt occurs-•(i) at the time when the electronic record is accepted by the designated information system; or•(ii) if the electronic record is sent to an information system of the addressee that is not the designated information system, at the time when the electronic record comes to the knowledge of the addressee;•(b) If the addressee has not designated an information system, receipt occurs when the electronic record comes to the knowledge of the addressee.”Termination of an offerAn offer may be terminated in the following ways:a. Acceptance by the offereeOnce the offeree accepts the offer, a contract comes into existence, signalling the end of the offer. “Acceptance to an offer is like a match to a train gun powder”. Where an offer is made to more than one offeree, the acceptance by one of them generally does not terminate the offers to others.b.Rejection by the offereeKey principles: a) direct rejection: a rejection of the offer by the offer materially which composes a counter-offer.b) indirect rejection: An attempt to accept an offer on new terms, not contained in the offer, isrefused to sell it for that amount. P then tried to accept D’s original offer to sell for £1000. D refused it.Held: There was no contract between A and B. When a counter-offer of £950 was proposed by B, it kills A’s original offer. When B later agreed to buy the farm fo r £1000, it was already a new offer and it is up to A to accept it or to reject it.Notice: request for information。