Offer

toc **What is an offer?**
An offer is a clear statement of terms by which the offerer is willing to be bound.

//Has an offer been made?//
To determine if an offer has been made, consider whether it would appear to a reasonable person in the position of the offeree that an offer was intended, and that a binding agreement would be made upon acceptance.

According to McHugh JA in Empirnall Holdings the offeror's intention is determined __objectively__ according to outward manifestations.

According to Carlill v Carbolic Smoke Ball Co the word 'offer' is not conclusive of the existence of an offer.

In Gibson v Manchester City Council the court held that correspondence between parties is not sufficient to establish a contract. There must be a formal offer that is accepted.

According to the UK Court of Appeal in Carlill v Carbolic Smoke Ball an offer is capable of being made to anyone in the public.

//A Mere Puff//
A mere puff is a non-promissory statement that is made as part of negotiations to advertise and product and induce another to enter into a contract. For example,

//Supply of Information//
Where a statement is made that is intended only to convey some information to the other party, it cannot be construe d as an offer.

//Invitation to Treat//
An invitation to others to make offers to enter into negotiations. Nothing in an invitation to treat forms part of the offer.

__Examples of an invitation to treat:__

__ A person calling for tenders can stipulate the basis on which the tender process will be conducted, and will be bound by any conditions which he/she says will govern the tender process __ ==
 * Goods in catalogue: Grainger v Gough__;__
 * periodicals: Partridge
 * Display of goods for sale: __Boots Cash Chemist__
 * On shelf with price: Fisher v Bell
 * __Auctions__
 * The auctioneer does not make an offer to sell, but merely invites offers from those present at the auction
 * Each bid constitutes an offer, and the auctioneer communicates acceptance of the final bid by the fall of the hammer
 * This means that no contractual claim can arise if the auction is cancelled, a bidder is entitled to withdraw his/her bid before it is accepted, and the auctioneer is not obliged to sell to the highest bidder
 * __Tenders__
 * A call for written tenders will also usually constitute an invitation to treat, with each tender constituting an offer (unless promise to accept highest bid: Harvela Investments)

==

Ticket Cases - Macrobertson Miller Airlines
According to Stephen J in //__Macrobertson Miller Airlines__//, the sale of ticket is indicative of an offer.


 * Barwick CJ**
 * contract occurs when the passenger was provided with a seat [at 134]
 * the passenger was in effect making an offer, which could be accepted by conduct. If the airline carried the passenger then the airline would be entitled to retain the fair as a ‘reward’. If the passenger was not carried, the airline incurred no obligation other than to refund the fair. Thus, there were no contractual obligations between the parties until the airline provided the passenger with a seat on the aeroplane.


 * Stephen J **
 * conventional analysis in ‘ticket cases’ [at 139]
 * the ticket constitutes an offer by the airline
 * offer is capable of acceptance or rejection by the passenger **//once//** the passenger:
 * indicated acceptance **//through conduct//**; OR
 * has had a **//reasonable opportunity to read the ticket and its conditions//**
 * On that basis, the ticket records the terms of an offer


 * Jacobs J **
 * When the passenger presents the ticket and embarks on the carriage [at 146]

Thus, HC held that the contract for the cruise had been made when the cruise was booked and therefore the conditions on the ticket issued later, when F arrived in Greece, did not form part of the original contract.
 * Exception:** Oceanic Sun Line Special Shipping Co v Fay
 * Brennan J at [230] rejected the application of conventional analysis of ticket cases because the ticket in this case was issued in performance of a previous contract, and that if the ticket was a mere offer, a passenger’s election to decline carriage subject to an exemption clause could be exercised only after travelling to Greece and only if fare were forfeited
 * The terms were **//not//** delivered before the original contract was made

Termination of an Offer
An offer will cease to be available for acceptance when it is withdrawn or revoked by the offeror, or if it lapses or is rejected by the offeree.

//Revocation/Withdrawl of the Offer//

 * An offer may be revoked at any time **//before//** it is accepted
 * a promise to hold an offer open for a specified period is **//not//** binding unless the offeror has given **//consideration//** for that promise: Goldsborough Mort & Co. v Quinn
 * Thus, offeror can revoke offer before the specified period for acceptance has expired (provided the offer has not been accepted in the meantime)
 * The withdrawal of an offer is effective **//only//** when it has been **//actually communicated//** to the offeree;
 * **// no exception is made for withdrawal sent by post //** : Byrne & Co v Leon Van Tiehoven & Co
 * A promise to hold an offer open **//is//** binding if consideration has been given in return for that promise
 * Option = an agreement between an option holder and a grantor under which the option holder is entitled to enter into a contract with the grantor on specified terms, either at a specified time or within a specified period.

//Revocation of Offer in Unilateral Contracts//

 * Was thought that an offer made in exchange for the doing of an act becomes irrevocable once that act has been partly performed
 * However, this general principle preventing revocation in unilateral contracts was rejected by the Full court in Mobil Oil Australia v Wellcome International
 * ** Generally, a unilateral offer can be revoked at any time unless: **
 * There is an **//implied ancillary contract//** not to revoke (no basis in Mobil for this) - whether the offeree is bound to complete performance
 * There is an **//estoppel//** if the offeree has acted to their detriment on an assumption that the offer will not be revoked (no case in Mobil for this – actions of franchisees benefit to both parties, little/no detriment).

//Lapse of the Offer//

 * If a particular period of time for acceptance is specified, lapse occurs at **//end of period//**.
 * If **//no period of time is specified//**, lapse occurs after a **//reasonable period of time has passed//**: **//__Ramsgate__//**
 * Reasonable is judged by circumstances, including: nature of subject matter & form in which offer made.

//Failure of Condition//
1. EG: multiple parties- offer may be subject to an implied condition that the document is ineffective until signed by all parties
 * offer may be made **//subject to//** an express or implied condition that must be fulfilled **//before//** the offer can be accepted;
 * Or, it may be subject to an express or implied condition that it should lapse **//upon the//** **//happening of a certain event//**
 * In Neill v Hewens, HC held that no contract had been concluded because when one of the co-vendors signed, the presumption was that she did not intend to bind herself unless her co-vendor also signed

//Rejection and Counter-Offer//
EG: If buyer says “Is there some room for movement on the price?”
 * Once an offer has been rejected, it is no longer available for acceptance
 * The making of a counter offer is treated as a rejection of the original offer
 * Note: distinction between a **//counter-offer//** and an **//inquiry//** relating to the alteration of the terms
 * By requesting information, the offeror is **//not//** intending to reject the offer, but only to obtain some guidance in deciding whether to accept or reject
 * Also there can be an express rejection, or lapse if parties are **//silent//**.
 * Rejection must come **//before//** acceptance and **//must be communicated//**.