Acceptance

1. Acceptance Definition: The final expression of agreement (assent) to the terms of an offer.

2. Six key points regarding a valid acceptance of an offer • Once an offer is accepted there is a contract between the person making the offer and the person accepting it, provided the other essentials of formation, consideration and legal intention are present. • The acceptance has to be positive and unqualified. In other words it is responding to the offer by saying ‘Yes' and not ‘Yes, but' or ‘Yes, if'. • The words can be said or written. • Acceptance can be by conduct, in other words by doing something • However, it cannot usually be by doing nothing • Acceptance must usually be communicated to the person making the offer

3. Acceptance by conduct • The gestures or deeds of the person accepting the contract can be classed as valid acceptance as long as it is clear and positive actions, e.g. Payment, eating the meal or ordering a meal • Doing nothing will rarely be accepted as acceptance. • Felthouse v Bindley: A nephew discussed buying a horse from his uncle. He offered to purchase the horse and said if I don't hear from you by the weekend I will consider him mine. The horse was then sold by mistake at auction. The auctioneer had been asked not to sell the horse but had forgotten. The uncle commenced proceedings against the auctioneer for conversion. The action depended upon whether a valid contract existed between the nephew and the uncle. • There was no contract. You cannot have silence as acceptance.

4. Postal Rules Only Apply: • To letters of acceptance - not to offers, revocation of offers or counter- offers. • If the post is the usual method of communication between the parties involved in the contract or it is specifically stated as the only or accepted method of communication of acceptance.

5. Acceptance by Post: • Takes place when a correctly stamped and addressed letter is posted (the principle is based on the fact that once a letter is posted it cannot be got back). • The claimant must be able to prove the letter was posted. This is reflected in a certificate of posting from a post office or a signed statement by the person putting the letter in the letterbox.

6. Adams v Lindsell • The D wrote to the C offering to sell them some wool and asking for a reply 'in the course of post'. The letter was delayed in the post. On receiving the letter the C posted a letter of acceptance the same day. However, due to the delay the defendant's had assumed the C was not interested in the wool and sold it on to a third party. The claimant sued for breach of contract. • There was a valid contract which came in to existence the moment the letter of acceptance was placed in the post box. • This case established the postal rule. This applies where post is the agreed form of communication between the parties and the letter of acceptance is correctly addressed and carries the right postage stamp. The acceptance then becomes effective when the letter is posted.

7. Electronic and instantaneous forms of communication Telex • Telephone: Is the same as speaking directly to some one and is instant acceptance as long as the words are clear and unqualified. • Fax and telex: As soon as the fax or telex is sent it is the same as speaking on the telephone. • If the call was not heard or the telex/fax not received because of faulty equipment then there is no acceptance.

8. Entores v Miles Far East Corporation • The claimant sent a telex message from England offering to purchase 100 tons of Cathodes from the defendants in Holland. The defendant sent back a telex from Holland to the London office accepting that offer. The question for the court was at what point the contract came into existence. If the acceptance was effective from the time the telex was sent the contract was made in Holland and Dutch law would apply. If the acceptance took place when the telex was received in London then the contract would be governed by English law. • To amount to an effective acceptance the acceptance needed to be communicated to the offeree. Therefore the contract was made in England.

9. E-mails, texts and Instant messaging • They are legally received by the other party when the person to whom they are addressed are able to access them. • Example: If John sends an e-mail acceptance of an offer to Richard on the 12th March. But Richard only opens the e-mail on the 16th March. Which date is the offer accepted? • You by an MP3 off Amazon and receive an e-mail confirming your order. When does offer and acceptance take place?

10. Complete activity Five (page 40). For every case so far (16 approx) looked at contract create a revision tool that: Gives the case name Topic the case is linked to The legal point the case makes An application of the legal point using the facts of the case. Example: Case Name: Fisher v Bell Topic of Law: Invitation to treat Legal point: A good advertised in a shop window is merely an invitation to treat because the shopkeeper may wish to choose the person to whom to sell the goods. Legal point applied to the facts: Fisher was found not guilty of offering a flick knife for sale as the display of the knife with the price on in the window was only an invitation to treat. This was because in contract law Fisher still has the right to choose whether or not he sells the flick knife to the person or not. Tasks

11. Legislation covering acceptance of goods and services • Unsolicited Goods and Services Act 1971 • Consumer Protection (Distance Selling) Regulations 2000 • If you receive goods you don’t want acceptance is not simply the act of keeping them, even if there is a request for payment. • The seller has to provide a free method of returning the goods and if they don’t you may keep them and not pay for them. • The Electronic Commerce (EC Directive) Regulations 2002 • Says if you buy goods off the internet the offer takes place when the seller tells you the conditions of purchase and how to buy the item. The acceptance takes place when the other party clicks on the buy/confirmation button. • This doesn’t apply to e-mail purchases just instant purchases.