CONTRACT LAW

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Contract Law

CASE 1

Part 1

(a)

The nature of the advertisement can be considered as a contract of offer and acceptance on the following grounds. The standard or traditional approach to contract law states that all contracts require there to be an offer and an acceptance. Given that the courts will go on to state that the details of the bargain and the adequacy of consideration are not for them to assess, or determine, this amounts to a formalistic, or due process view of contract law.

The idea of agreement was the vehicle which the courts used to invoke the idea of individualistic consenting. It was said that there should be a "meeting of minds" or a consensus ad idem in order to establish a contract. However, we should not imagine that the courts would concern themselves with what the parties actually think. In most circumstances, the court, through the use of the reasonableness test, would decide what it would have been reasonable for the parties to have thought. Oliver Wendell Holmes once said: (Beatson, 2010, p45-61)

the making of a contract depends not on the agreement of two minds in one intention, but on the agreement of two sets of external signs - not on the parties having meant the same thing, but on their having said the same thing.

In Tamplin v James the judge said:

If a person will not take reasonable care to ascertain what that person is contracting about, that person must take the consequences.

In Gibson v Manchester City Council it was said that offer and acceptance as such were not that important. This is sometimes referred to as the "global approach" because there were so many papers and conversations passing back and forth that it was impossible to break the interactions down into discrete acts of "offer" and "acceptances". So, in this case, in the British Court of Appeal, Lord Denning said that the analysis of the relationship in terms of offer and acceptance was not so important. But the House of Lords disagreed with him when the matter was appealed.

Bell v Lever Bros [1932] - the majority of the court thought that there was an intention to contract. Lord Atkin said that it is of paramount importance that contracts should be observed, and that if the parties honestly comply with the essentials of the formation of contracts, that is agree in the same terms on the same subject matter, they are bound, and must rely on the stipulation of the contract for protection from the effect of facts unknown to them.

(b)

Bob is not entered into contract with Geraldine on the basis of the following discussion.

This question is linked to the issue of whether there was an intention to create legal relations.. Whether it can be accepted depends upon the objective intention of the party making the statement which is alleged to be an offer.

A brochure or advertisement is an attempt to solicit offers, but does not constitute an ...