Introduction - TMA 01 – Problem Solving Assessment
As per the facts of the case, it has been observed that the following case attracts the provisions of contract law that provides regarding the invitation to treat. Invitation to treat in the contract law provides regarding the acceptance of offer for the formation of a valid contract.
Advice and recommendation for Philomena
As per the facts of the case, it has been advised for Philomena that in her case the provisions regarding an invitation to treat shall be applied in this case. The principles relating to an invitation to treat was originated in the case of Harvey v. Facey[1] which was decided by the United KingdomJudicial Committee of the Privy Council which stated that in cases where bargaining is done regarding the price of the product for which the contract is to be made, the bargains and offers made are not actual offers rather they are an invitation to treat. Invitation to treat are invites made by the parties to make an offer. The offer that gets accepted at last is considered as the true offer in the formation of the contract. In the above authority, it was also stated by the court that the offers as invitations made by the parties are not considered as actual offers as they are supplies of information by the parties. Moreover, the court also stated that the quoting of the lowest acceptable price is also not an offer until it is accepted by the other party and the contract gets concluded (Austen-Baker, 2017).
When the above-mentioned rules are applied to the facts of the instant case, it can be observed that Philomena has been dealing in the sale and purchase of rare books and inquired regarding the first edition of the book written by Niccolò Machiavelli. She found regarding the book through an advertisement that stated by Mark Harrington that the book is available for £1000. She called the seller and stated that she would purchase the book for £750. On the invitation she made, the seller replied that his last price would be £900. Philomena stated that she would be needing some time to think and will revert soon. The seller stated that he would not sell the book to anyone for three days so that Philomena can think in that time. On the same day, Philomena finalized the sale of the same book for £1500 and informed the buyer that she would obtain the book and give him. The buyer paid Philomena in cash. At this point, though the contract was done between the parties Philomena and her buyer and the payment of consideration was done but the contract shall not be stated to be concluded as the object for which the contract was made was not yet available (Reddy, 2020).
Philomena informed Mark Harrington that she would purchase the book but he informed her that he has already sold the book for £1000. Hence, Philomena contacted another supplier Herbie and finalized the deal for the purchase of the book for £1300. She again took time for deciding and contacted the seller by calling but the call was recorded on the answering machine. Hence, the acceptance of the offer by the other seller Herbie could not complete as the acceptance by Philomena was not communicated to the offeror. As per the principles of contract law, the offer is deemed to be accepted when it is communicated. And the offer is accepted against the offeror as soon as the offeree puts the acceptance in transition and the offer is accepted against the offeree as soon as the acceptance is communicated to the offeror (Taylor and Taylor, 2019).
On applying the above rule of acceptance on the facts of the above case, it has been clear that the acceptance made by the offeree Philomena was not communicated to the offeror Herbie as the acceptance was recorded in the answering machine. Hence, the offeror shall not be deemed to be accepted as it was not communicated.
Reference of the case Entores Ltd v. Miles Far East Corporation[2]can be taken where it was held by the court that the communication of the offer, as well as acceptance, is required for the formation and the conclusion of the contract. It has also been stated by the court that in cases where the acceptance is being given by modern modes of communication, the postal rule of communication shall not be applied and the contract shall only be deemed to be accepted when it is instantly communicated between the parties (Eisenberg, 2018).
Thus, it has been recommended for Philomena that in the first case where she contacted Mark Harrington for the first edition of the book, the contract was not completed as she took time for thinking and before she could communicate her acceptance, the seller sold the book to another party. Hence, the contract was not completed between the two parties and thus, Philomena has no claim in this case (Jansen and Zimmermann, 2018).
In the second instance, where Philomena contacted another seller Herbie for the same book and communicated the acceptance through the phone that was recorded in the answering machine, the contract is not termed to be completed as the message in the answering machine was not communicated to Herbie. He did not know the acceptance recorded in the machine and he sold the book to another buyer.
Lastly, where the contract was between Ronan and Philomena, the contract though completed, shall not have a binding effect as the book for which the contract was done was not available. Hence, in this case, Philomena is advised to give a refund of £1500 as the contract is not completed due to the non-availability of the book. Hence, Philomena shall have no claim in this case as neither of her contract was completed and in the case of Ronan, she shall be required to give a refund as she is unable to provide the product.
References
Austen-Baker, R., 2017. Implied terms in English contract law. Edward Elgar Publishing.
Eisenberg, M.A., 2018. Foundational principles of contract law. Oxford University Press.
Entores Ltd v. Miles Far East Corporation [1955] EWCA Civ
Harvey v. Facey 1893
Jansen, N. and Zimmermann, R. eds., 2018. Commentaries on European contract laws. Oxford University Press.
Reddy, P.H., 2020. The Concept of Good Faith Become Part of English Contract Law.
Taylor, R. and Taylor, D., 2019. Contract Law Directions. Directions.
[1] 1893
[2] [1955] EWCA Civ
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