Daily Archives: January 13, 2013

A statement of intention.


Legal eaglets 0 check this out.

A party may state what he intends to do. This is not the same as saying what he shall do. An intention may be changed legally. For a party to not do something that he said that he SHALL do is a breach of contract.

Harris v Nickerson (1873). Be it understood that the party bringing in the action whether in civil or in criminous law is the first party mentioned in any record of the case.

One party may supply information to another. Neither the request for further information nor the response is an offer not an acceptance.

Harvey v Facey (1893) is the key case for this.

A display of goods is an invitation to treat and not an offer. There are exceptions to this such as in the case of dealing with a machine.

Thornton v Shoe Lane Parking (1971).

An advertisement is an invitation to treat.

Carlill v Carbolic Smoke Ball. This seemed to be an advert but was in fact an offer to all the world. It did not need to be accepted and then performed. Performance was acceptance.


A request for tenders. This is an invitation to treat. The tender is the offer. Harvela v Royal Trust Co of Canada 1985.

An invitation to treat may contain an implied undertaking to consider all conforming tenders. See Blackpool and Fylde Aero Club Ltd v Blackpool Borough Council 1990.

An auctioneer’s request for bids is an invitation to treat.

The bid is an offer. When the hammer comes down the offer is accepted. In the case of auctions without a reserve price the auctioneer enters into a separate (collateral) contract. The nature of this is that the auctioneer will accept the highest contract bid..

Warlow v Harrison (1859) and Barry v Davies (2000).


Read Anson pp. 27-38—-\——-


An offer must be communicated to count. One cannot accept an offer without knowing about it.

A contract requires a meeting of minds or consensus ad idem.

Gibbons v Proctor (1891). a policeman sent in information without knowing that an offer of a reward had been made for such information.

R v Clarke (1927). This is an Australian case. Hearing an offer and the forgetting about it is the same as never knowing of it.

Brogden v Metropolitan Railway Company 1871 – an offer accepted by behaviour.

Confetti Records v Warner Music UK Ltd 2003 – same principle.

Acceptance is when words of behaviour lead to the objective judgment that this is an acceptance.

Hyde v Wrench (1840) after an offer is made if the offeree attempts to add terms while accepting this destroys the offer.

An offer is made – the offeree then asks a question. This question has no effect on the offer. Stevension, Jacques and Co v McLean 1880.

An acceptance cannot be made through silence.

Felthouse v Brindley 1862. An offeror cannot waive communication if this would disadvantage the offeree.


The Law of Contract – an introduction for newbies.


Greetings ye uninitiated! This shall be a case of the blind leading the purblind. Here goes!

Check it – a contract is not what you may assume it to be. When I was but a twelvemonth younger and scarce a shade greener I bethought me that a contract was something that had to be written and written in legalese. As a child when brought by my parents to travel agencies I would while away the minutes perusing these documents of quite exceptional opacity. It struck me then as it does know that for the legal profession language is a means of concealing rather than revealing facts and rules. I digress so I will gress. Not a word I know. Down to the real meat and potatoes.


A contract requires there to be parties twain. A party may be an individual or several persons. A party may be a form group such as a public limited company, the state etc…. One party to a contract is the offeror – he makes the offer. The other is the offeree – he has the offer made to him. An offer must be accepted for a contract to be formed. Notice that it is convention to say ”he” for a party. Ultra-feminists beware – this text will not go through PC convulutions of saying he or she, (s)he, they etc… when the meaning of ‘he’ in this context to signify a party of either gender or a party consisting or persons of both genders is well understood.

Contract chiefly concerns the enforcement of promises. Not all promises are legally binding as we shall see. Later we will return to this issue and discuss which promises have legal status and which do not.

A contract can be purchasing something in a shop.

It is important to note that contracts do not need to be in a written form though the most important and complex ones are invariably written do so as to be certain what the terms are. One of my barrister chums, Raymond, ten years ago told me, ”Any lawyer will tell you that a contract can be accepted by conduct and not just signature.” Drat – my plan to get out of honouring my housing agreement by never signing it was scuppered.


Gentle readers – a contract is when ”parties have voluntarily assumed liabilities to each other.”

An offer must be accepted unconditionally for it to be valid.

The acceptance must be validly communicated for the contract to be formed.

Subjective inference is not determinative and seldom important in ruling what a contract consists of. Subjective intention is what a party meant at the time. Say Bloggs says to Timmy, ”I will buy your car for 1 000 pounds.” Bloggs meant Syrian pounds despite being in the UK when he said it. I know it would be daft of him to mean it but if he genuinely meant it then that is his subjective intent. Timmy accepted the offer at once. They then get into a row because Timmy insisted on pounds sterling. The court would go by objective inference. What would a neutral person assume the pounds to mean? As one is in the British kingdom one would presume the pounds to be British currency. The court would find the contract legally binding and require that payment be handed over in pounds sterling.

What would a reasonable person in the position of the offeree understand by such words? That is the essential test.

Centrovincial Estates Investors Assurance Company (1983) is the leading case for such matters.

An offer is an expression of a willingness to form a contract in specified terms. It must be made with the clear notion that it will be legally binding once accepted. No additional ado must be acceptable. If an offer is made and the offeree essays to parley further while accepting the offer then this is not an acceptance. This is a counter offer which wipes the previous offer.

Storer v Manchester City Council (1974). Manchester city council sent Mr Storer and offer which was intended to be binding if it was accepted. Manchester City Council’s offer was accepted but they attempted to back out on it. Held – the contract was water tight.

Gibson v Manchester City Council (The year of grace some one thousand nine hundreds nine and seventy). The Council posted Gibson an invitation saying it ‘may be prepared to sell’ his house to him. Gibson accepted. Lord Diplock ruled that this was not a binding offer. ”the words may be prepared to sell are fatal;.” What the council had sent him was an invitation to treat. By treat they do not meant give him goodies – they meant the verb to treat as in the noun treaty. To open negotiations.


The Falklands dispute rises again.


In recent months the Falklands issue has come to the fore once again. Fernanda Kirchner has broached the topic and demanded that the Falklands be ‘returned’ to Argentina as she says. Why is she bringing this up again? It may be because last year marked the thirtieth anniversary of the British victory in the South Atlantic conflict. It is probably also because the economic situation in Argentina is dire and she wishes to divert attention from her failures on the domestic front. In fact that was why Leopoldo Galtieri sent the invasion force in 1982. When Argentina is prosperous there is nary a mention of this so-called lost land. Jingoism raises its ugly head when the chips are down. It is a desperate government playing its last card. Yet Mrs Kirchner accused the UK of trying to militarise the situation. She disparaged the decision to deploy an air force pilot to the Falklands – it so happened to be His Royal Highness Prince William of Wales.

David Cameron has been statesmanlike and asked the Argentine Government to recognise that most people in the Falklands wish to remain in association with the United Kingdom. His language has been restrained. He has, however, stated that the United Kingdom is willing to fight in defence of its territory again. Any other answer would play very badly with a domestic British audience.

The Republic of Argentine has a flimsy claim to the Falklands. The few Argentines there were happy to be evacuated in 1833. There were some Britishers there about 1765. I remember reading one the main accounts of the conflict – well history, it was not penned by a participant. The Battle for the Falklands it was entitled – if memory serves. A Briton wrote it. I was examine history from an Irish republican perspective at the time and was eager to reach the conclusion that the United Kingdom had no title to those isles. In fact I arrived at the opposite summation. This work was not neutral but not was it wholly one-sided.

There would be some political mileage for Cameron in upping the ante. He could visit the Falklands and send more troops there. This line would play well with Conservative voters and the middle ground. Labour and the Lib Dems would probably feel compelled to support his action – thus copper fastening the position of the Falklands as a Crown dependency. To be frank economic growth is sluggish and the cuts are unpopular. It would be as well for Cameron for tactical reasons to become more strident with regard to the South Atlantic. This would ruffle the feathers on Hampstead Heath. But leftists and peaceniks do not vote Conservative at any time so no harm done. Mr Cameron ought to pay a visit to the Falklands and possibly send Her Majesty the Queen. This would reassure the people of the archipelago. It would also signal determination to the wretched mob in Buenos Aires. It could be seen as provocative and put off neutrals around the world. Some would see that Cameron was exploiting the issue for partisan gain so a visit by the sovereign might be a bridge too far.

The Falklands Islands are quite large in area – about half the size of Wales. I have been told by a German soldier that one needs a lot of space for military training. The United Kingdom is too crowded. The Falklands would be a good base for live fire exercises. I would build a large base there and send 1 000 troops there at a time to do training for a few months and relieve those troops every few months. This would have the added bonus of being a major deterrent in case the Republic of the Argentine was minded to try to take military action in order to seize the islands. In fact the Argentine military has been cut to the bone in the last 30 years. The spending cuts mean that the Argentine armed forces could not launch such an expedition.

A dream of the Tory Party Chairman.


My dream had a few episodes. 


In one I was sharing a flat with a lady of about my age. I cannot think who this brunette was. She was genial. We looked out the window of our place over a steep dry slope down to a river. It seemed as though we were in a tropical land. I saw dark skinned children frolicking in the muddy stream. It was a blissful scene.

Later I was in the House of Commons watching a debate. Precious few parliamentarians were there. I cannot recall any of the individuals. I was on the green benches but not an MP.

The debate broke up with any formal end. I was filing out and chatted to a slender chap in a pale grey suit. He wore glasses. He seemed to be my age but I noticed he had white hair. We went to his office and chatted. It was a well-appointed office  with brown wooden panelling on the wall. This bloke told me he was the Chairman of the Conservative Party. He had been a spad. i WAS surprised. He told me he was 41 and had bought his house. I was benevolently envious of all he had accomplished so young.

Looking back I realise that man was my colleague David with whom I talked politics last night. In fact David is a mild leftists and a europhile. 

I was speaking to him and his wife Maria. They lived in Vietnam hence the tropical land but it does not explain the dark skinned children. 

The dream my eflect my dissatisfaction with what I have achieved so far.