Beruflich Dokumente
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Counter Offer
Such counter-offer will replace and cease the original offer. This fresh offer made is
known as a counter-offer (Hyde v Wrench 1840), and is subject to the conditions now
applied.
Acceptance
After an agreeable offer has been made, there must be an acceptance of it before a
contract can be established.
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So what is a contract?
A contract is a legally enforceable agreement. The conventional view is, to make an
agreement enforceable in court it must be supported by consideration. The parties to the
agreement must show their intention to enter into a legal relationship. Therefore the basis
of every contract is an unreserved agreement of some basic terms.
I stress the words ENFORCEABLE IN COURTS, an agreement to borrow $20,000
between a triad loan shark and a casino gambler is still to be enforced by the Court,
except when violence ensues. Contracts illegal in nature will be abandoned by the court.
Definition of an OFFER
An offer requires an unequivocal (having only one possible meaning) statement of
willingness to contract on certain specified terms. These terms will become binding upon
their acceptance by the offeree.
Stone (2002, p.13) defines an offer as an indication by one person that he or she is
prepared to contract with one or more others, on certain terms, which are fixed, or
capable of being fixed, at the time the offer is made.
An automatic machine ready to take coins (or cards) constitutes an offer, the customer
accepts that offer by paying coins (or pressing octopus cards).
Communication of Offer
Adams v Lindsell [1818] 1 B& Ald. 681
An offer is operative up to the point when it arrives at the offerees premises.
Termination of offer
The general rule is that a revocation is permissible up to the point at which acceptance
takes place, but the revocation must be communicated to the offeree.
Byrne v Van Tienhoven [1880] 5 CPD 344
A contract was nevertheless formed after the revocation was posted, as the revocation had
not yet been communicated to the offeree.
Reliable Evidence of Revocation is Sufficient
Dickinson v Dodds [1876] 2 Ch 463 (B 223)
A revocation heard via a third party was sufficient.
Effect of Firm Offers?
Routledge v Grant [1826] 4 Bing 653
A firm offer can be extinguished, before the time limit has expired, by a revocation.
Lapse of Time
An offer is limited in life span, and may come to an end through the lapse of a reasonable
period of time.
Ramsgate Victoria Hotel v Montefiore [1886] 1 Ex 109
An offer made in June could not be accepted in November due to the lapse of time.
Survival of Offer Dependent on State of Affairs
Financings Ltd v Stimson [1962] 3 All Er 368
An offer to buy a car could not be accepted once it had been stolen and damaged.
Definition of ACCEPTANCE an unconditional assent to the terms of an offer.
A valid acceptance must be actual communicated with the offeror. On the other hand,
revocation or termination of an offer should also be actual communicated. The
acceptance must be equally definite, unqualified, and unconditional. The unconditional
terms of acceptance must correspond precisely with the terms of offer. Besides, the most
important point is that the acceptance should be made under the actual communication of
both parties (Entores v. Miles Far East Corp. 1995) except for the Postal Rule (Adams v.
Lindsell 1818). It means an acceptance creates an agreement the instant it is dropped in
the mailbox (communicated to the agent), and it is immaterial whether the letter of
acceptance ever actually reaches the offeror. Besides, we used to clarify the difference of
the Postal rule and silence since silence is not equal to acceptance because it hasnt got
In the course of negotiation, several standard letters or forms might have been exchanged.
The last form will kill the unamended order form by what amounted to be the counteroffer.
Manohar Chugh t/a Electric & Electronic Industries v Oka Electronics Ltd [1991] 2 HKC
1
Communication of Acceptance
General Rule
Holwell Securities v Hughes [1974] 1 All ER 161
An acceptance must be communicated to the offeror.
Silence?
Felthouse v Bindley [1862] 11 CB (NS) 869
Silence will not constitute an acceptance.
Effect of Waiver of Communication
Carlill v Carbolic Smoke Ball Co [1863] 1 QB 256
The need for communication was waived in the advertisement.
Effect of a Prescribed Method of Acceptance
Manchester Diocesan Case [1969] 3 All ER 1593
Where a method of communication is prescribed any method no less advantageous will
usually suffice.
Different Types of Communication
Postal rule by letters
Adams v Lindsell [1818] 1 B & Ald 681
A postal acceptance is effective when it is posted, not when it reaches the recipient.
Instantaneous Methods
Entores v Miles Far East [1955] 2 All ER 493
Telex is an instantaneous method of communication. A contract is concluded when the
acceptance comes through on the recipients telex machine.
Communication via a third party
Unilateral contracts
Errington v Errington [1952] 1 All ER 149
A promise could not be revoked after performance had started.
Dr Eric Cheng
City University of Hong Kong
25 January, 2015