Contract Assignment

Usman Kiani
The situation which has been described falls clearly under scope of contract law,
specifically under “Offer and Acceptance”. An offer is a proposal which is put
forward by an individual (the offeror) showing that they are ready to be legally
bound on particular terms with no uncertainty or hesitation given that the
conditions applied are accepted by the offeree. While this is often not given much
importance as in “Aria and Bu”. It raises problems about what makes a legal
contract
The “Objective approach” is used when a case of this nature are being decided.
In the “Objective Approach” the judges will consider on how a “Reasonable
Man” would have perceived the involved parties’ words and conduct. The other
approach used is the “Subjective Approach” which is disregarded in cases of this
nature. Blackburn J effectively described it in the case of Smith V Hughes as “If,
whatever a man’s real intention maybe, he so conducts himself that a reasonable
man would believe that he was assenting to the terms proposed by the other party.
The man thus conducting himself would be equally bound as if he had intended to
agree” Lord Clarke also agrees with this viewpoint which is seen in the case of
RTS V Molkerei. Lord Clarke said “… It depends not upon their subjective state
of mind but upon a consideration of what was communicated between them”.
Therefore courts will also perceive the given situation in the same way.
For a contract to be legally acceptable, the judges will take into account the
“Mirror Image Rule” and whether if it was followed or not. The “Mirror Image
Rule“ simply requires “Unqualified Assent” or that no changes should be made
in the terms of an offer. Both the offer and the acceptance should be similar, these
are the requirements for a contract to be legally enforceable. In cases like these, the
judges primarily focus on last offer that was presented when they are deciding
what parts are included in the contract.
In the situation mentioned above. Aria knowingly or unknowingly made an
invitation to treat or an ITT to Bu by saying “thinking of selling her car for
£2000.” An ITT is simply described as willingness to enter into contractual talk
which may lead to a contract being made. The difference between an offer and a
contract were made clear in the case of Gibson v MCC which is the readiness of
being bound by acceptance of the offer without any further changes. As stated
above Aria’s words are thought to be an ITT but the words “Thinking of” prove
that it is not an offer as it is not clear enough to be regarded as an offer to the
“reasonable man” and that she does not have an intent to sell her but she might in
the future.
On Wednesday, when Bu emails Aria “will take the car for £2000. Will pay u
when I see u.” It might be interpreted as an acceptance but rather, it is an offer. As
stated above, an offer is a proposal put forward by an individual given that the
conditions applied are accepted by the offeree (Storer V MCC). An offer must
also be communicated to the offeree as mentioned in the case of Fitch V
Snedaker. In the situation mentioned above Bu’s offer was properly
communicated to Aria via the form of email and if seen in the perspective of
Harvey V Facey the words “Will pay u when I see u” is regarded as an additional
supply of information.
When Aria replies to Bu on Wednesday evening with “Don’t be silly, I was not
actually offering to sell the car but, having thought about it, you can have it for
£2500. I know you will want it so don’t bother writing back unless you are not
interested”, the first half of this sentence is a rejection while the other half of the
sentence is a counter offer. A counter offer is a changed version of the original
offer which is then disregarded. The counter offer can be presented forth by both
the offeror and the offeree who can do 1 of 3 things, they can either accept, reject,
or make another counter offer by further modifying the terms of the offer. When a
counter offer is made the original offer is disregarded and is considered to be
finished as seen in the case of Hyde V Wrench. The issue that arises is that Bu did
not fully read or comprehend the message after the seeing only the rejection
present in the email sent by Aria. As per the case mentioned above Fitch V
Snedaker. It is vital for an offer to be communicated to the offeree but it is not
clear in this case if it was properly communicated or not but that is up to the courts
to decide.
Another problem that is present in the given situation is that Aria established
silence as a mode of acceptance in her counter offer. In the case of Felthouse V
Bindley it was made clear that silence is not considered as a mode of acceptance,
as made clear in the case that the silence of the nephews did not amount to
anything as it was not appropriate to do so under simply an assumption. Even
though in most cases silence is not considered to be an acceptance, the courts have
decided that it can be a method of acceptance but only in exceptional cases or
circumstances as seen in (Vitol V Norelf). As previously mentioned acceptance
requires “Unqualified Assent” to be legally acceptable and in the cases of
Entores V Miles, the courts made it clear that an acceptance is valid when it is
communicated and it is opposite to the postal rule where the acceptance is
considered to be valid as soon as the offeree send their letter of acceptance, it is up
to the courts to decide whether this given situation is an exceptional circumstance
where silence can be regarded as a mode of acceptance and if the offer was
properly communicated to Bu or him deleting the email out of frustration after just
reading one sentence prevented Aria from properly communicating her counter
offer.
Even if the situation was under different circumstances and Bu agrees to buying
the car for £2500 but Aria refuses to deliver it, it would still not be legally
acceptable as silence is not a mode of acceptance, this is the same as in Felthouse
V Bindley as law applies equally to all and in this case it would seem that it is
unfair for Bu that silence be taken as a method of acceptance, even though there
are cases that disagree with this principle e.g The Case of Hannah Blumenthal.
Ultimately, it is up to the courts to issue the verdict.