CASES ON FORMATION OF A CONTRACT
Payne v Cave (1789)
The defendant made the highest bid for the plaintiff's goods at an auction sale, but he withdrew his bid before the fall of the auctioneer's hammer. It was held that the defendant was not bound to purchase the goods. His bid amounted to an offer which he was entitled to withdraw at any time before the auctioneer signified acceptance by knocking down the hammer. Note: The common law rule laid down in this case has now been codified in s57(2) Sale of Goods Act 1979. Fisher v Bell (1960)
A shopkeeper displayed a flick knife with a price tag in the window. The Restriction of Offensive Weapons Act 1959 made it an offence to 'offer for sale' a 'flick knife'. The shopkeeper was prosecuted in the magistrates' court but the Justices declined to convict on the basis that the knife had not, in law, been 'offered for sale'. This decision was upheld by the Queen's Bench Divisional Court. Lord Parker CJ stated: "It is perfectly clear that according to the ordinary law of contract the display of an article with a price on it in a shop window is merely an invitation to treat. It is in no sense an offer for sale the acceptance of which constitutes a contract." PSGB v Boots (1953)
The defendants' shop was adapted to the "self-service" system. The question for the Court of Appeal was whether the sales of certain drugs were effected by or under the supervision of a registered pharmacist. The question was answered in the affirmative. Somervell LJ stated that "in the case of an ordinary shop, although goods are displayed and it is intended that customers should go and choose what they want, the contract is not completed until, the customer having indicated the articles which he needs, the shopkeeper, or someone on his behalf, accepts that offer. Then the contract is completed." Partridge v Crittenden (1968)
It was an offence to offer for sale certain wild birds. The defendant had advertised in a periodical 'Quality Bramblefinch cocks, Bramblefinch hens, 25s each'. His conviction was quashed by the High Court. Lord Parker CJ stated that when one is dealing with advertisements and circulars, unless they indeed come from manufacturers, there is business sense in their being construed as invitations to treat and not offers for sale. In a very different context Lord Herschell in Grainger v Gough (Surveyor of Taxes)  AC 325, said this in dealing with a price list: "The transmission of such a price list does not amount to an offer to supply an unlimited quantity of the wine described at the price named, so that as soon as an order is given there is a binding contract to supply that quantity. If it were so, the merchant might find himself involved in any number of contractual obligations to supply wine of a particular description which he would be quite unable to carry out, his stock of wine of that description being necessarily limited." Carlill v Carbolic Smoke Ball Co (1893)
An advert was placed for 'smoke balls' to prevent influenza. The advert offered to pay £100 if anyone contracted influenza after using the ball. The company deposited £1,000 with the Alliance Bank to show their sincerity in the matter. The plaintiff bought one of the balls but contracted influenza. It was held that she was entitled to recover the £100. The Court of Appeal held that: (a) the deposit of money showed an intention to be bound, therefore the advert was an offer; (b) it was possible to make an offer to the world at large, which is accepted by anyone who buys a smokeball; (c) the offer of protection would cover the period of use; and (d) the buying and using of the smokeball amounted to acceptance. Harvey v Facey (1893)
The plaintiffs sent a telegram to the defendant, "Will you sell Bumper Hall Pen? Telegraph lowest cash price". The defendants reply was "Lowest price £900".
The plaintiffs telegraphed "We agree to buy … for £900 asked by you". It was held by...