- Agreement in English law
Agreement in English law is a part of
English contract lawwhich establishes the first stage in the existence of a contract. The three main elements of contractual formation are whether there is (1) offer and acceptance (agreement) (2) consideration (3) an intention to be legally bound.
One of the most famous cases on forming a contract is "
Carlill v. Carbolic Smoke Ball Company", ["Carlill v. Carbolic Smoke Ball Company"  2 QB 256] decided in nineteenth-century England. A medical firm advertised that its new wonder drug, a smoke ball, would cure people's flu, and if it did not, buyers would receive £100. When sued, Carbolic argued the ad was not to be taken as a serious, legally binding offer. It was merely an invitation to treat, and a gimmick. But the court of appealheld that it would appear to a reasonable manthat Carbolic had made a serious offer. People had given good "consideration" for it by going to the "distinct inconvenience" of using a faulty product. "Read the advertisement how you will, and twist it about as you will," said Lindley LJ, "here is a distinct promise expressed in language which is perfectly unmistakable".
The most important feature of a contract is that one party makes an offer for a bargain that another accepts. This can be called a 'concurrence of wills' or a 'meeting of the minds' of two or more parties. There must be evidence that the parties had each from an objective perspective engaged in conduct manifesting their assent, and a contract will be formed when the parties have met such a requirement. [e.g. Lord Steyn, "Contract Law: Fulfilling the Reasonable Expectations of Honest Men" (1997) 113 LQR 433; c.f. § 133 BGB in Germany, where "the actual will of the contracting party, not the literal sense of words, is to be determined"] An
objectiveperspective means that it is only necessary that somebody gives the impression of offering or accepting contractual terms in the eyes of a reasonable person, not that they actually did want to contract.
Invitations to treat
Where a product in large quantities is advertised for in a newspaper or on a poster, it is generally regarded as an offer, however if the person who is to buy the advertised product is of importance, i.e. his personality etc, when buying e.g. land, it is merely an invitation to treat. In Carbolic Smoke Ball, the major difference was that a
rewardwas included in the advertisement which is a general exception to the rule and is then treated as an offer.
Fisher v. Bell"  1 QB 394
Pharmaceutical Society v. Boots Cash Chemists"  1 QB 401
Spencer v. Harding" (1870) LR 5 CP 561
Harvey v. Facey"  AC 552
Carlill v. Carbolic Smoke Ball Co."  1 QB 256
Warlow v. Harrison" (1859) 1 E & E 309; 120 ER 925
Barry v. Davies (t/a Heathcote Ball & Co.)"  1 All ER 944
*Sale of Goods Act 1979, s. 57(2)
Hyde v. Wrench" (1840) 3 Bea 334
Stevenson v. McLean" (1880) 5 QBD 346
Acceptance by Conduct
Brogden v Metropolitan Ry Co" (1877) 2 App Cas 666
Prescribed Method of Acceptance
Manchester Diocesan Council for Education v Commercial Investments Ltd"  3 All ER 1593
Knowledge and Reliance on offer
Williams v. Carwardine" (1833) 5 C & P 566; 172 ER 1101
R v. Clarke" (1927) 40 CLR 227
Tinn v. Hoffman" (1873) 29 LT 271
"Battle of the forms"
Butler Machine Tool Co Ltd v Ex-cello Cpn (England) Ltd"  1 WLR 401
Acceptance in case of tenders
Harvela Investments Ltd v. Royal Trust Co of Canada"  AC 207
Blackpool & Fylde Aero Club v. Blackpool BC"  1 WLR 1195
Communication of acceptance
Necessity for communication
Carlill v Carbolic Smoke Ball Co"
ilence a condition of acceptance
Felthouse v Bindley" (1862) 11 CBNS 869
Consumer Protection (Distance Selling) Regulations 2000(SI 2000/2334) Reg 24
Post or telegram
Henthorn v. Fraser"  2 Ch 27
Holwell Securities Ltd v. Hughes"  1 WLR 155
Entores Ltd v. Miles Far East Corporation"  2 QB 327
Brinkibon Ltd v. Stahag Stahl mbH"  2 AC 34
The Brimnes"  QB 929
Revocation of Acceptance
*Hudson ‘Retraction of Letters of Acceptance’ (1966) 82 "Law Quarterly Review" 169
Termination of offer
Routledge v. Grant" (1828) 4 Bing 653; 130 ER 920
Byrne v. Van Tienhoven" (1880) 5 CPD 344
Dickinson v. Dodds"  2 Ch D 463
Errington v. Errington"  1 KB 290
Lapse of time
Manchester Diocesan Council for Education v. Commercial Investments Ltd"
Death of offeror
Bradbury v. Morgan" (1862) 1 H & C 249; 158 ER 877
Death of offeree
English tort law
Consideration in English law
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