(1)

The question is about the offer and acceptance.

An invitation to treat is different from offer. It is an indication of willingness to carryout the
business. It is an invitation to start negotiations or to make an offer. An advertisement for
bilateral contract is the example of the invitation to treat. These are types of advertisement
which advertise specified goods at certain price like those found on newspapers and magazines.
This point was also illustrated in the case of Partridge v Crittenden. Here, Boom posting the
information on the company’s website to sell shares for £3 was the advertisement for bilateral
contract.
In response to invitation to treat, an offer is made. An offer is an intention to contract on certain
terms which will become binding upon acceptance. The offer does not leave room for any
negotiations as seen in the case of Storer v Manchester City Council. So Raj has seen the
information about the shares and gave an offer to Boom by sending the form through post.
However, if the offeror changes his mind, he can revoke or withdraw the offer anytime before
the acceptance takes place. It was established in the case of Payne v Cave. Under this principle,
Raj is not in any breach of contract when he revokes the offer of buying shares before it is
accepted by Boom.
Moreover, the withdrawal of the offer must be communicated for the revocation to be effective
as seen in Byrne v Leon Van Tienhoven. Here, Raj has communicated the revocation of the offer
by emailing Boom.
However, if the revocation of the offer is reached to the offeree but the offeree simply fails to
read it, then the writhdrawal takes effect on reaching the offeree, as found in the The Brimnes.
So here the revocation of offer by Raj is effective as it was reached to Secretary; it does not
matter that the Secretary chooses not to read it.
Acceptance of the offer must be communicated as held in the case of Entores. Here, although
the Secretary of Boom emails Raj to accept his offer to buy shares for £3, this acceptance is
ineffective as it communicated after the revocation of the original offer. An acceptance cannot
take place where there is no offer. So the contract between Raj and Boom was not formed.
Rejecting the offer to sell Raj shares at £3 does not affect as originally no contract was formed.
However, a new contract may form if Raj offers to buy the shares at new price. It does not have
to do anything with the previous dealings between him and Boom.
(2)
The doctrine of consideration is defined in different ways. In the case of Currie v Misa, it was
defined in the terms of benefit and detriment: ‘a valuable consideration in the sense of the law
may consist of either in some right, interest, profit or benefit accuring to one party, or some
forebearance, detriment, loss of responsibility given, suffered or undertaken by the order’.
It was defined in terms of sale and purchase in the case of Dunlop v Selfrifge, the claimant must
show that he has bought the defendant’s promise by doing, giving or promosing something in
return for it.
The statement that doctrine of consideration should play no role in the modification, as
opposed to the formation, of contracts can be seen in the area of existing obligations as good
consideration.
Where there is existing public duty, the consideration does not modify the contract. This is
because the public officials are only carrying out their legal obligations. It is their pblic duty to
carry out the duty and the public policy also states that law should not encourage any
opportunities for extortion that enforcing such a promise would create. This can been seen in
the case of Collins v Godefory.
Section 25 of the Police Act 1996 also differentiates between the duty for which the police can
charge as it is important to prevent crime and the performance of act for which they can charge
as it is requested by an individual. This inlines with the above statement and not allow
consideration to modify the contracts.
However, the consideration modifies the contract where the statutory provisions allow the
police authorities to charge for special serives only that extended beyond their general
obligation to prevent the crime, protect the property and maintain law and order.
Also, where an official does more than required by the existing obligations, the promise of
payment will be enforceable. As in the case of Glasbrook Brothers v Glamorgan County Council,
the police doing extra was ruled to be consideration for the promise to pay more. This principle
was also ruled in the cases of Harris v Sheffeild Unite Football Club and LeedsUnited FC v Chief
Constable of West Yorkshire.
As opposed to the statement, it is seen that the courts do find consideration where the public
policy reasons demand that a promise to be binding. This point was illustrated in the case of
Ward v Byham where the mother doing more than statutory duty was held to be consideration
for the father’s promise to pay.
Moreover, if a party promises to provide benefit to third party which they are already bound to
provide under the contract, this promse could be still good consideration for a promise made by
third a party. So here the consideration does modify the existing contract. Here the cases of
Scotson v Pegg, Shadwell v Shadwell , the Eurymedon illustrated this principle. Also in the case
of Pao ON v Lau Yiu Long, the Privy Council confirmed that the promise to perform and existing
obligation owed to a third paryt can amount to good consideration.
However, the consideration plays no role in the modification of contracts where there is existing
contractual duty to promisor. As in the case of Stilk v Myrick, it was ruled that performance of
an existing contractual duty owed to promisor is not consideration.
However, it the party is doing more than existing obligation, it will be consideration as seen in
the case of Hartley v POnsboy.
But in the case of Harris v Watson, the courts said that paying extra wages for extra work under
demanding circumstances would not be enforceable for public policy reasons. This is because it
would allow sailors to act opportunistically while at sea. So it can be said that courts do agree
the consideration should not modify the contracts.
It can be seen that in the case of William v Roffery Brothers, it was held that the promise of one
party to perform an exisiting contractual duty to supply goods or servixes confers an additional
practical benefit on the other party, then, providing that no duress is involved, it will be
sufficient consideration to make the promise given in return binding. Also in the case of Pinnel,
it was ruled that if debtor offers to pay reduced sum back to the lender in full and final
settlement and the lender agrees to accept it, this agreement will only be binding if the debtor
provides some extra benefit element that can be treated as consideration. So the practical
benefits and extra benefit elements are consideration which play role in the modifications of
contract.
In the cases of promissory estoppel, the contracts are modified which would not be if it was not
operated. As in the case of High Trees House Ltd, it was ruled that under the doctrine of
promissory estoppel, a contract party who promises not to enforce a contractual right will not
be able to enforce that right later if it would be inequitable to do so, and the promise has been
relied upon by the other party.
However, there are conditions such there must be a promise, a reliance, and shield not sword,
which must be fulfilled for promisory estoppel to apply. These conditions do play role to stop
the consideration from modifying the contracts.

(6)
The question is about the exemption clauses and the common law controls and statutory
controls.
A limitation clause is when a party try to avoid incurring liability for breach or they may mention
that liability will be limited to a certain amount in damages whereas an exclusion clause is a
clause which seeks to exclude all liabilillty for certain breaches.
The common law controls to operate the jusges will consider whether a clause has been
incorporated into contract, and whether the words used in the clause can be interpreted as
covering the alledged breach.
The terms can be incorporated in three ways: by signature, reasonable notice and previous
course of dealing.
The exemption clause needs not to be on the document itself; it is enough that the document
mentions the existence of the clause and where it can be found. As in the case of Thompson v
London, Midland and Scottish Railway Co. here Easy Learning had guided Tony on the call that
the terms will be found on their website.
Ans separate terms will only become the part of the contract if the recipient has reasonable
notice of them, as in the case of Parker v South Eastern Railway. Here, although Easy Learning
informed Tony to read the terms on the website, the terms were not incorporated as there was
update on the website and Tony could not read them.
Also, the terms will be incorporated into the contract if the notice is given before or at the time
of making contract. This point was illustrated in the cases of Olley v Marlborough Court and
Thornton Shoe Lane Parking. Here, the terms were not available when the contract between
Tony and Easy Learining was formed because of the update.
The courts have said that the more the unusual or onerous a clause is, the greater the degree of
notice is needed to incorporate it. Highly onerous and unusual clause cannot be simply
incorporated by giving or displaying a document containg the clause; the party imposing the
clause must take special steps to draw attention to the clause. This rue was found in the case
Interfoto Picture Library v Stiletto Visual Programmes. Here, the term that there will be charge
of £50 per day for the late return of any books was onerous and Easy Learinign needs to bring
extra attention of Tony towards this term. They cannot simply charge £250 to Tony when he
later returned the books which he forgot.
Moreover, secondly the courts will question whether the words used in the clause can be
construed or interpreted as covering the alledged breach. The courts will apply contra
proferentem rule to establish whether the clause covers the breach. It means that where an
exemption clauses’ words are ambiguous and unclear, they will be interpreted in the way least
favourable to the party relying on them. The application of the rule was found in the cases of
Andrews v Singer and Houghton v Trafalgar Insurance Co. here, the courts will interpret the
term of Esy Learning least favourable to them as the words whatsoever and howsoever are
ambiguous and unclear.