*Brinkibon: agents can be used to when they have actual or apparent (ostensible authority)
an objective test disregarding parties actual state of mind and considering only external manifestations is used (Fitness First v Chong, where acceptance is on signature).
Paterson v dolman: capacity of more than one acceptance
1. Rejection and Counter Offers
Hyde v. Wrench (1840 UK): Counter offer destroyed original offer: ‘must be simple acceptance of terms’
Stevenson v Maclean (1880): Inquiry for information not counter offer
Rest Sea v APT [2010] NSWCA: “attempt at acceptance with insufficient clarity” not counter offer, acceptance or rejection
Oriolo v Wolfram [2011] NSW: offeree may ignore counter offer and accept.
2. Conduct
Brogden v. Metropolitan Railway (1877): Acceptance by conduct. Commercial reality is that business parties will begin project before finishing contract and will need to find retrospective acceptance. ‘consensus short of complete expression, discovered from docs of an incomplete description’
*Empirnall v. Machon Paul (1988): E requests work from M, oral contract is formed for regular process payments. M requests E signs contract, told E does not sign. M replied “proceeding on understanding conditions are accepted by you, and works are conducted in accordance”. Held: Kirby: objective test, silence never acceptance. McHugh Samuels: silence in conjunction with other circumstances can indicate acceptance
Took benefit of offer with knowledge of terms (and made process payments according to it)
Commercial understanding
Offeror indicated he was willing to be bound by an oral contract (objection to manner not terms)
Kriketos v Livschitz [2009] NSWCA: Allsop P: subsequent conduct may manifest intent to be bound
rewards: Fitch v Snedeker (1868, US): info given in ignorance of reward doesn't = acceptance
R. v. Clarke (1927): motive relevant no legal claim if act to prevent a criminal charge per Issacs J
Standing Offers: Great Northern Ry. v. Witham (1873) LR: could revoke standing offer for future.
2.3 Silence and Acceptance by Conduct
Felthouse v Bindley (1862) cant impose acceptance by silence.
Latec Finance v. Knight [1969]: to waive rule of acceptance must exhibit intent to do so. Cf carlil. Contract between two parties through another, not signed by one for TV finance. Tv kept. actions not evidence offer was accepted.
2.4 Consumer Protection Legislation
Credit (Commonwealth Powers) Act 2010 (Qld). s. 14(1) Offer in writing, signed by debtor and credit provider. s.14(2) Accept by drawing down credit or other act satisfying offer
ACL: S39 prohibits unsolicited cards, S40 prohibits the assertion of a right to payment for unsolicited goods or services, Ss 41, 42 no liability for reciept of unsolicited goods or services, S43 prohibits assertion of right to payment for unauthorized ads
PADMA 2000 (Qld): s369 5 business days starting on day buyer receives contract. Can be waived
3. Methods of Acceptance (prescribed by offeror )
Manchester: may use any ‘not less advantageous mode’. Consider: speed, security, reliability, record
3.1 Instantaneous Methods
Brinkibon v. Stahag Stahl [HL 1983]: General Rule: Acceptance is communicated when and where it is received. Lord Wilberforce: consider Intentions of the parties, Sound business practice", and in some cases a judgment where the risks should lie
Entores v. Miles Far East [Eng. CA,1955]: communication need be merely virtually instantaneous
3.2 Correspondence between offer and acceptance/Battle of the forms
*Butler Machine v Ex-Cell: 23 May S quotes price, terms (price variation clause) on back of quote: ‘orders subject to our conditions which shall prevail’. 27 may. B replies with order, rejects price variation clause and provide own terms but accept order on S terms. 5 June S replies and returns slip but cover latter on delivery said ‘in accordance with our revised quotation of 23 May.
Acknowledgement was an acceptance. Lord Denning: docs should be considered as a whole, letter on 5 june is decisive.
Appeal judge: s should prevail as were most forceful C18 conflict replaced with synthesis…
3.3 PAR
Acceptance not effected until it’s communicated to the offeror (Byrne v Tienhoven), but if parties contemplated use of post its complete as soon as letter is posted per Dixon (Tallerman v Nathans). The contact is not precluded if the letter is lost or another contract made (Household Fire v. Grant).
Adams v. Lindsell [1818]: genesis of PAR.First to post accepts risk as they implied post reply was acceptable. too circular if receipt required
This presumption may be rebutted by requesting written notice (Holwell Securities v. Hughes) or receipt (Nunin Holdings Pty Ltd v Tullamarine)
Vienna Convention on International Sales Art 24: PAR Does not apply to international trade: acceptance will be effective when an indication of assent reaches the offeror.
Gardiner: acceptance rule heavily favours offeree and may outweigh unfairness of an offeror being able to cancel at any time.
3.4 New Forms of Communication (no set of rules yet)
Ebay v. Creative Festival [2006] FCA 450, #48-49: analogous to ticket cases Rares J
eBay argues the contract was signed electronically change in terms was ‘misleading and deceptive conduct’. Reasonable person would fund online steps to amount to contract.
Creative argued it upon receiving and considering ticket but terms precliuded refund
Brinkibon, per Lord Wilberforce: PAR is justified by a ‘substantial interval’ - no such interval with email.
