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Aussmpsit: A version of trespass on the case, where the plaintiff was permitted to allege that there was an undertaking by the defendant, and that the defendant had done that duty badly and resulted in a loss (slightly resembles a contract). Indebitatus Assumpsit: Structure of indebitatus assumpsit was a narrative that included a second promise. Promise to pay for goods by February, has not paid for goods by Feb, makes additional promise to pay for goods by May. The debtor needs to have acknowledged the first promise and have made the second promise for there to be a claim. Later the second promise (or even in some cases the original promise is presumed i.e. Lodging) is presumed as a result of Slade’s case.

Humber Ferry (1348) (Class 3)

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Slade's case (1602) (Class 3)

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The ferryman and the customer agree to carry the customer's mare across the River Humber The ferryman overloaded the ferry and the mare drowned Ferryman was guilty under the tort of deceit (a version of trespass) because he "deceived" the customer about the misfeasance

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Morley promised to buy Slade's wheat in the future When it came to the agreement's maturity Morley dishonoured his promise to buy Jury held that there was only one promise (no subsequent promise for there to be indebtidatus assumpsit) But the Court held that the assumpsit was presumed (i.e. the second promise is assumed)

This was a remedy for misfeasance (bad act) There was still no remedy for non-feasance (a failure to perform)

Assumpsit presumed Slade's case is the origin of modern commercial law A remedy for non-performance started.

OFFER True legal test: Does the alleged offeree reasonably believe there was an offer (Smith v Hughes) - Objectivity, actual Knowledge and identification of offeree (only in some cases) is considered Offer distinguished from invitation to treat Offer must consist of definite promise to be bound provided that certain specified terms are accepted Offeror must have completed his or her share in formation of contract by finally declaring readiness to undertake obligation upon certain conditions, leaving to offeree option of acceptance or refusal. Must NOT merely be feeling way towards agreement or initiating negotiations from which agreement might result. They must be prepared to IMPLEMENT promise. 1. Indication of willingness to undertake legal liability on defined terms as viewed by reasonable person 2. Sufficiently clear indication of terms of prospective conduct (Class 5) Objective test & Offer - Defendants sold smoke ball, and Carlill v Carbolic Smoke Ball Co - Objective test (the advert objectively looked advertised that if used as like an offer) directed, and any person still (Class 5) contracted influenza, 1000l would - The normal rule is that the offeree must be identified, but the court held that there can be rewarded, with deposit in be an offer to the world (which becomes a bank to showing sincerity. binding contract when the offeree performs - Ms Carlill contracted the flu the conditions). despite following orders. Hawkins (Class 7): J held that she was entitled to - Carill is an exception to the rule that recover the money. D appealed. acceptance must be communicated (in unilateral contracts the performance is taken as communication of acceptance). (Class 8) Unilateral contracts: - Ms Carlill accepted by performance (she could choose whether to act) - Only one party is bound (Class 11) Executed consideration: - Ms Carlill's performance was acceptance and a unilateral contract.

Paulger v Butland Industries Ltd [1989] (Class 5)

Airways Corporation of New Zealand Ltd v Geyserland Airways Ltd [1996] (Class 5)

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Paulger owed money to certain creditors On belief that there was an upcoming sale he wrote to the creditors asking for 90 days forbearance and giving a personal guarantee

Airways charged Geyserland to use the airport Geyserland refused and asked for acknowledgement which they received: "if you want acknowledgement from me that you

Objective test: When deciding whether a contract existed, the court will take the point of view from the reasonable person (given the circumstances). So it does not matter what the individual party believes. (Class 7) : Acceptance can be by forbearance. (Class 14): Forbearance is an example where extra consideration is needed. I.e. the debtor must do something in return for asking the creditor to forbear. - Airways had actual knowledge of Geyserland's rejection, so could not take Geyserland's use of the airways as acceptance. - If you know the intention, you cannot rely on an objective test (e.g. objectively the use of -

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Pharmaceutical Society of Great Britain v Boots Cash Chemists (Southern) Ltd [1952] (Class 5)

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dispute the charges, then you can regard this letter as acknowledgement." Geyserland continued to use the airport. So Airways took them to court Customer able to pick up items they want from shelves and take to cash desk to pay for. Plaintiffs alleged that the sale of poisons was not supervised as required by the Act.

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the airport would have been acceptance). But this could be perceived as subjective or objective (as the reasonable person would have known what Geyserland meant).

Goods displayed for sale are an invitation to treat A shop sale consists of an offer when the customer brings the item up and acceptance i done by the cashier.

AUCTIONS Standard Auction: - Request for bids: invitation to treat - Bid: offer. Knock down: acceptance [Therefore bid can be withdrawn] Codification of withdrawal of bids: Sale of Goods Act 1908, s 59(2) Confirms bids may be retracted until sale, but could contract out of this legislation. Auctioneers use this as basis to say you cannot withdraw bid Repealed by Auctioneers Act 2013, s 28(3) Modern codification: Fair Trading Act 1986 Sec 36ZE Any bid at an auction may be withdrawn before the end of the auction. Contracting out forbidden: Sec 5C (1)The provisions of this Act have effect despite anything to the contrary in any agreement. (2)A provision of an agreement that has the effect of overriding a provision of this Act (whether directly or indirectly) is unenforceable. - For auctions: Payne v Cave (Class 5) - Request for bids is an invitation to treat - The bid is the offer - And the knock down is the acceptance Harris v Nickerson - Advertisement for an auction is not an offer it is an invitation to treat (1873) - No damages for travel (Class 5) - Offer is bid - No reserve auction - Procedural: Advertisement that will hold Barry v Davies - Plaintiff bid 200 pounds each for 2 auction without reserve is the offer (made by [2000] (Class 5) engine analyzers, which had been auctioneer). The acceptance is by the highest entered into an auction without bidder. reserve. - Substantive: Offer to hold auction without - No other bids were received. reserve (conceptualized by the point of view Auctioneer thought bid was too low of the vendor) which is accepted by the and withdrew the machines from person whom makes the highest bid. sale- plaintiff sued for damages for refusal to sell to him as the highest bidder, claiming damages for money (27518 pounds) to purchase similar machines elsewhere. Plaintiff won. D appealed.

Markholm Construction Ltd v Wellington City Council (Class 6)

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BALLOTS Advert for land sections at fixed prices, ballot as many applicants. WCC cancelled ballot due to undervaluing the lots. Ptffs sue for specific performance, and alternatively damages for loss of chance in the ballot.

The Council could not unilaterally change the procedural contract (could not amalgamate contracts. - Two contracts (procedural and substantive): 1. Procedural - Between WCC and the applicants that the WCC would conduct a ballot for sale of the sections - The offer was made by WCC in its advertisement - This offer was accepted by the plaintiffs when they completed the application to the terms of the advertisement. - Plaintiffs contend that this was a unilateral contract (like in CSB v Carlill) 2. Substantive - Between the WCC and the successful applicants (offerors) for sale of the sections) - The offer is the one made by the intended purchaser in the application This offer is accepted by the WCC the moment that applicants number is drawn from the ballot. -

TENDERS Invitations for tenders usually merely invitation to treat, the tender submitted is an OFFER, and until it is accepted there is no contract. (If you sell by tender you are asking people to offer prices you will/will not accept there is no obligation to accept) Gregory v - Argued that RDC was obliged to - Request for tenders is an invitation to treat accept tender - And the tender is the offer and the higher or Rangitikei District [1995] any tender does not necessarily have to be accepted. (Class 6) - Council made a request for tenders - The council was bound to accept Pratt's Pratt Contractors for a new flyover and said: The tender because the council's advert was an Ltd v Palmerston principal shall only enter into a offer and the tender was acceptance (of the North City Council contract for the non-excluded tender procedural contract) [1995] (Class 6) with the lowest price" - And Pratt Contractors spend time and money making a tender to the required specifications - Their tender was the lowest price, but the Council chose an alternative tenderer who had a cheaper option but on different specifications.

Harvey v Facey [1893] (Class 6)

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PROVISION FOR INFROMATION - Provision of information will not be an offer Will you sell us Bumber Hall Pen? - The owner was not offering to sell at 900, they Telegraph lowest cash price were informing that it what their lowest cash Lowest cash price for Bumper Hall

Chapelton v Barry Burban District Council [1940] (Class 6)

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Pen 900l. price was. We agree at 900l., send the title - No contract deeds Silence TICKETS AND RECEIPTS Plaintiff hired deck chair- the notice - The conditions should be indicated in the offe did not limit liability. However, the or made to the attention of the offeree ticket given after purchase stated - Held by county judge that it was similar to conditions, namely purporting to limit cases like train tickets- conditions are set, and liability of owners of chair. Chair was the plaintiff knew when purchasing. However defective. Found defendants were COA finds distinction, stating it is a question o negligent but exempt from liability fact whether it has been sufficiently brought due to ticketing conditions- plaintiff to the notice of the person entering into the appealed to COA. contract, and that was not the case here. From language of the notice, the ticket was seen merely as vouchers/ receipts showing how long the person is entitled to use the chair for. Ticket should not MODIFY the contract AFTER the transaction has been made. - States ‘respectfully requests to obtain tickets for their money’, therefore implies that the ticket may be obtained anytime after they get the chair.

TERMINATION OF OFFERS Termination/Revocation can be by: - Communication - Failure of Condition (As in Financing’s v Stimson) - Lapse of time - Death of offeror/offeree: Usual rule: termination, especially if personal contract. However, if offeree accepts in ignorance of death- significant in case of guarantees e.g. A guaranteeing a loan with mortgage of house- in that case, A as offeror/offeree still bound, even when dead. - Change of circumstance: Must objectively determine apparent intention of offeror and hence whether offer was expressly or impliedly made subject to condition that it lapsed if there was a substantial change in circumstances (Nielsen v Dysart Timbers Ltd) COMMUNICATION Rule: Revocation complete on communication Basic Rule: All you have to do is communicate your change of mind – say that the offer has terminated Dickinson v Dodds - Vender offers to sell house purchaser - An offer can be revoked by an act (e.g. selling (1876) the house to a second purchaser) - But sells to another purchaser - The first purchaser finds out and then - This is an exception to the general rule that (Class 7) revocation is complete on communication purports to accept the initial offer even if coming from a third party. - Dealer managed finance company’s Revocation of offer: Financings Ltd v deals. Stimson paid a deposit to a - There was no contract because the customer Stimson [1962] (Class 7) dealer and signed a purchase revoked his offer to buy before acceptance (by

agreement for a motor car from the plaintiff’s (finance company), with the agreement being produced by the dealer with authority from the finance company. This would become binding once the finance company signed off. Finance company sought to recover difference between the amount the car sold for and its original amount set with Stimson.

Loring v City of Boston (1844) (Class 7)

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the finance company). This revocation was made by returning the car and communicating his dissatisfaction with the car. Failure of condition: - An offer cannot be accepted if the conditions are not met - Failure to meet conditions can terminate an offer Method of acceptance prescribed (Class 8): The standard form (offer) required that the acceptance be in writing and that oral acceptance was not effective.

LAPSE OF TIME 1837: reward for information on An offer can be terminated through lapse of time arsonists leading to arrest 1841: Loring gave information and tried to claim reward

ACCEPTANCE Use of words ‘agree’ not necessarily determinative- Court entitled to look at whole context to determine whether there is appearance of mutual agreement, judging by the conduct and communications as such that a reasonable bystander would consider the offeree to have assented to the terms- if ought reasonably to be clear that offer does not represent offeror’s true intention, no contract arises

Requirements for there to be a contract - Fact of acceptance - Communication - Sufficient certainty of terms - Whether obligations are conditional

ACCEPTANCE BE DERIVED BY: -Acceptance is unconditional -Communication ordinarily required -By conduct -By forbearance -By Post -Method of Acceptance prescribed -Silence (does not constitute acceptance)

UNCONDITIONAL ACCEPTANCE Lease had an option to purchase the - Acceptance must be unconditional (if there is house (an offer to sell) any change it becomes a counter offer) - The tenant purported to accept to - A counter offer rejects the initial offer. buy but changed the settlement date - Offer has details Eg, price, parties, parcels, - It was held that this was a counter payment, possession offer not acceptance - Acceptance “yes” with no embroidery BY COMMUNICATION Communication ordinarily required But offeror may waive communication, express or inferred judging by circumstances. Assumed more readily in unilateral contracts- performance of act will be deemed adequate e.g. Carlill v Carbolic Smoke Ball Co, finding lost dog for reward. On principle, in fact situation of Felthouse, nephew could rely on offeror’s telling him to waive communication (offeree) to enforce the contract Reporoa Stores Ltd v Treloar [1958] (Class 7)

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Brogden v Metropolitan Railway Co (1877) (Class 7)

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BY CONDUCT Metropolitan Railway Co - The court will look to determine whether there has sent a form of contract to been an appearance of mutual agreement. Brogden - And conduct may demonstrate an acceptance even Brogden sent it back with though there have been no express words indicating name of the arbitrator agreement. Metropolitan's clerk put the - there was a contract, despite the counter-offer, as the contract away and didn't acceptance was by virtue of the order and supply of reply coal- both assumed the contract was binding. This Metropolitan ordered coal positive conduct is sufficient to amount as a contract. and Brogden supplied - Similarly, payment for goods from automated machine It was held that there was a is acceptance by conduct contract (despite B's - Small number of cases where courts must disregard purported acceptance being external appearances because offeree’s actual state of a counter-offer). mind is known to offeror - Global approach may help in deciding parties have reached an agreement without need to point to precise moment

BY FORBEARANCE Forbearance can be acceptance AND consideration as in Paulger v Butland Indsutries Ltd (1989) The Forbearance of Butland constituted an acceptance of Paulger’s terms – Butland was acting as per the request of Paulger BY POST Postal Acceptance Rule: Not applicable if: Incorrect address or stamp Offeror prescribes different method Manifest inconvenience or absurdity -international sale of goods contracts are outside rule as in these cases, acceptance only effective on communication to offeror or on delivery to offeror’s place of business/ mailing address -uncertainty surrounding courier companies Instantaneous communication Web-based transactions- usually acceptance laid out in terms, in absence of such, courts will have to determine whether purchaser makes offer or vendor is offering to supply. Telex, email Practical rules General rule: what happened? E.g. If A does not hear reply of acceptance, no contract Usually there is an acknowledgement of acceptance of offer- consider circumstances- one can tell whether the other has received the acceptance.

Defendants were dealers in wool and - Acceptance is complete on posting wrote letter to plaintiffs , sending on - BUT it does not apply when there is an nd 2 sept offering eight hundred tods incorrect address or stamp; the offeror of wether fleeces of good quality at prescribes a different method; it results in s5s. 6d. per tod to be delivered, paid manifest inconvenience or absurdity for by 2 months’ bill in two months, - D liable for loss sustained. This was also due to weighed by agent within 14 days, neglect of defendants, so regardless they receiving answer in course of post. would be held liable. However, this offer was misdirected, meaning that plaintiffs did not receive offer until 5th sept. Plaintiffs accepted, but their letter did not arrive until 9th sept. Defendants expected answer by 8th sept, and when did this not happen, sold the wool to another person. METHOD OF ACCEPTANCE PERSCRIBED Financings Ltd v Stimson [1962] 1 WLR 157: Writing prescribed, therefore oral acceptance not effective. Clear, mandatory terms needed, or offeree may respond with other reasonable means of communication not less advantageous for offeror. May also be implied- signing of memorandum of agreement held to require acceptance by signature of same document. SILENCE - Uncle and nephew negotiate to sell - Generally silence will not amount to Felthouse v nephew's horse acceptance Blindley (1862) (Class 8) - Uncle says "if I hear no more about - You cannot impose a burden on the offeree to him I shall consider the horse mine" accept - A (uncle) had no right to impose upon B - Nephew does not expressly accept the offer (silence) (nephew) an obligation/ onus- silence does - Auctioneer accidentally sells the not count as acceptance. Offeror cannot horse to someone else impose onus on unwilling offeree, as puts - Uncle sues auctioneer for conversion offeree in difficult position Adams v Lindsell (1818) (Class 8)

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Court held: silence is not acceptance

However, nephew (offeree) may expressly or impliedly waive the need to communicate acceptance, but still must follow objective approach- was offeror reasonably lead to believe offer was accepted? - I.e. this case may have been different if the nephew had said, "if you don't hear from me, take it that I accept." Cla...