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tutorial of contract law, english law, common law
Tipologia: Appunti
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Read in full the case of Carlill v****. Carbolic Smoke Ball Co [1893] 1 QB 256. You can download it (and the advert) from the contract Blackboard site under the ‘Resources’ tab). Answer the questions below and prepare to discuss them in class.
Objectives
Your task
Galac-Tech Electronics Ltd places advertisements in the national daily press, concerning the opening of its new Leicester branch. Similarly worded notices are prominently displayed in the window of the new premises. The advertisements read:
“ Galac-Tech Electronics is proud to announce the opening of its Leicester branch. As an introductory offer all games consoles are obtainable at 30% discount. This offer lasts one week only. Also, the first customer through the doors on Monday morning will receive, absolutely free, the television of their choice ”.
On seeing the advertisement on Friday morning, Adama rushes to the new store with his sleeping bag, and stays outside until Monday morning. Shortly before the store is due to open the manager tells Adama that the first customer will, in fact, receive £
Objectives
Your Task
The Question:
On 25th^ January 2015, Mr Adama of Galac-Tech Electronics Ltd placed the following advert in a local trade journal.
“I’m selling my standard Cylon 300 computers at the special price of £200 each. This OFFER will end on 31st^ January 2015 at 5pm. Reply by POST. Cash on delivery.
Orders are limited to a quantity of 20 per retailer.”
Mr Baltar sent a letter stating “ I accept your offer for 20 Cylon 300’s, I assume payment by cheque is ok and that the software is included .” This letter was received by Galac-Tech Electronics on 28th^ January 4pm.
Ms Caprica did not notice the offer until the morning of the 31st^ January so she sent a fax to Galac-Tech accepting the offer for 20 Cylon 300’s and this was received at 4.30pm that day. However, the fax was not read by Mr Adama at Galac-Tech until the next day.
On February 1st, Galac-Tech sold all of the Cylon 300’s to Starbuck Computers Ltd for £250 each.
Advise Ms Caprica and Mr Baltar as to whether they can sue Galac-Tech for breach of contract.
a posting, e-mail communication takes place in a relatively short time frame. The recipient rule is therefore more convenient and relevant in the context of both instantaneous or near instantaneous communications. Notwithstanding occasional failure, most e-mails arrive sooner rather than later.
[99] Like the somewhat arbitrary selection of the postal rule for ordinary mail, in the ultimate analysis a default rule should be implemented for certainty, while accepting that such a rule should be applied flexibly to minimise unjustness. In these proceedings, it appears that the purchases made by the sixth plaintiff were not accompanied by a corresponding receipt of acceptances, as his e-mail inbox was full... the parties did not address me on the issue of when the contract was formed, though this appears to be a relevant issue depending on which rule is adopted. In the absence of proper and full arguments on the issue of which rule is to be preferred, I do not think it is appropriate for me to give any definitive views in these proceedings on this very important issue...
Rajah JC then referred to the Vienna Convention on International Sales. This convention has rules on international sales contracts between businesses. Many countries have signed up to it but the UK has not.
It appears that in Convention transactions, the receipt rule applies unless there is a contrary intention. Offer and acceptances have to 'reach' an intended recipient to be effective. It can be persuasively argued that e-mails involving transactions embraced by the Convention are only effective on reaching the recipient. If this rule applies to international sales, is it sensible to have a different rule for domestic sales?
[101] The applicable rules in relation to transactions over the worldwide web appear to be clearer and less controversial. Transactions over websites are almost invariably instantaneous and/or interactive. The sender will usually receive a prompt response. The recipient rule appears to be the logical default rule…
[102] Inevitably mistakes will occur in the course of electronic transmissions. This can result from human interphasing, machine error or a combination of such factors. Examples of such mistakes would include (a) human error, (b) programming of software errors and (c) transmission problems in the communication systems. Computer glitches can cause transmission failures, garbled information or even change the nature of the information transmitted. This case is a paradigm example of an error on the human side. Such errors can be magnified almost instantaneously and may be harder to detect than if made in a face-to-face transaction or through physical document exchanges. Who bears the risk of such mistakes? It is axiomatic that normal contractual principles apply, but the contractual permutations will obviously be sometimes more complex and spread over a greater magnitude of transactions. The financial consequences could be considerable. The court has to be astute and adopt a pragmatic and judicious stance in resolving such issues.
[103] The amalgam of factors a court will have to consider in risk allocation ought to include: (a) the need to observe the principle of upholding rather than destroying contracts, (b) the need to facilitate the transacting of electronic commerce and (c) the need to reach commercially sensible solutions while respecting traditional principles applicable to instances of genuine error or mistake. It is essential that the law be perceived as embodying rationality and fairness while respecting the commercial imperative of certainty.
A contract offer has only been accepted when the acceptance is brought to the
The message may not reach, or be intended to reach, the designated recipient immediately: messages may be sent out of office hours, or at night, with the intention, or upon the assumption, that they will be read at a later time. There may be some error or default at the recipient's end which prevents receipt at the time contemplated and believed in by the sender. The message may have been sent and/or received through machines operated by third persons. And many other variations may occur. No universal rule can cover all such cases; they must be resolved by reference to the intentions of the parties, by sound business practice and in some cases by a judgment where the risks should lie...” ..
Entores is saying that acceptance must be received by the offeror - the line to remember from Brinkibon , which upholds it, is that in terms of instantaneous communication no universal rule can cover all such cases: they must be resolved by reference to the intention of the parties, sound business practice and judgment of where the risks should lie. Brimnes says that where a party states that his fax machine will be manned during certain hours, then acceptance has been communicated if sent during those hours, even though the other party failed to read it.
Tutorial - Week 9: Intention to create a legal relationship
Discussion Session
Objectives
Your task
Read your lecture material and then the scenario below and be prepared to have a discussion about the following points:
The scenario:
Leeta and Ishka met as students studying at the Negus Metropolitan University. During their final year a romance blossomed between them and they decided to rent a house together after graduation. As a result of Leeta’s poor credit rating, the rental agreement was in Ishka’s name but Leeta always contributed half of the amount due which came to £500 per month. Generally, Leeta paid for most of the household expenses too because Ishka, working on a career as a writer, did not have a regular income. They continued to enjoy a happy relationship but things got difficult when Leeta was offered the opportunity to work in Bulgaria for two years as a senior architect on a shopping complex project. It meant more income and status for Leeta but Ishka felt she was too settled and did not want to leave the UK or the house they had furnished. Unfortunately, this all resulted in a great deal of arguing. Leeta accepted the job in Bulgaria because she felt the opportunity was too good to turn
Objectives
Your task:
The question
Witch Cars Ltd is a local car dealer, selling used and second hand cars. On 1 st November, Sabrina, the owner of Witch Cars secured a lucrative contract with Salam’s Rentals under which Sabrina would supply Salam’s Rentals with fifty serviced cars by 1st^ December. Sabrina was very keen to supply these cars, because she had been assured by Salam’s Rentals that her satisfactory performance would lead to a long term contract to supply cars to them.
Sabrina sub-contracted the servicing of the cars to Hilda’s Garage. The terms of the sub-contract required all the cars to be fully serviced by 25 th^ November. However, on 20 th^ November, Sabrina was approached by a rather distressed Hilda. Hilda
expressed concern that she may not be able to complete the work by the agreed
date (25th^ November) because her garage was in such financial difficulty, that she might not have the resources to fund the necessary overtime for her mechanics. On hearing this, Sabrina promised to pay Hilda an extra £1,000 to complete the work by 25 th^ November as originally agreed. On 25 th^ November, Hilda informed Sabrina that the servicing of the cars was finished, and that the cars were ready for collection. Sabrina then delivered the cars to Salam’s Rentals.
A few days later, Sabrina noticed that her showroom windows were rather dirty. She mentioned this during a lunch with Zelda, a local window cleaner. The following day, whilst Sabrina was away, Zelda washed the showroom windows of Witch Cars. When Sabrina retuned she was so pleased with the work that she promised to pay Zelda £100.
Following a review of her accounts, Sabrina is now refusing to pay Hilda the extra £1,000 and is also refusing to pay Zelda the £100.
Advise Hilda and Zelda.
Consideration in English law is one of the three main building blocks of a contract.
Consideration can be anything of value (such as an item or service), which each
party to a legally binding contract must agree to exchange if the contract is to be
valid. If only one party offers consideration, the agreement is not legally a binding
contract. In its traditional form, expressed as the requirement that in order for parties
to be able to enforce a promise, they must have given something for it (quid pro quo
): something must be given or promised in exchange or return for the promise. A
contract must be "met with" or "supported by" consideration to be enforceable; also,
only a person who has provided consideration can enforce a contract. In other
words, if an arrangement consists of a promise which is not supported by
consideration, then the arrangement is not a legally enforceable contract. Mutual
promises constitute consideration for each other.
Consideration for a particular promise exists where some right, interest, profit or
benefit accrues (or will accrue) to the promisor as a direct result of some
forbearance, detriment, loss or responsibility that has been given, suffered or
undertaken by the promisee. The consideration must be executory or executed , but
not past.
Consideration is executory when a promise to do something in the future is given in
exchange for another promise to be done in the future. Consideration is executed
when a promise is actually executed, in exchange for another promise to be
executed in the future. Consideration is past when a promise has been given or
executed before and independently of the other promise. For example, I promised to
take you to lunch, and then when we got there I said "you must pay, because I have
