E’s Suggestion and Outline Document
The issue is whether E has made an offer to Palma. Invitations to treat are ‘offers to negotiate – offers to receive offers’.1 By contrast, an offer is made where it can be objectively determined that there was an intention by the offeror to be bound on acceptance.2 On the facts, it can be seen that E’s mere ‘suggestion’ of the differential pricing schemes was an expression of willingness to commence negotiations because the end of the trial was imminent. Given the scale of the proposals in both length and cost, it could not be established, by applying an objective test, that the offeree could reasonably construe a mere ‘outline’ document as an offer, that is unless its substance proved otherwise. Secondly, the supply of information about two pricing structures is akin to a mere quotation of price, like that seen in Harvey v Facey.3 However, a relevant issue that arises in distinguishing the present case is whether an inquiry was made. It is not unreasonable to assume that following or during the April ‘suggestion’ conversation, C had made an inquiry in to the details of the ‘differential pricing’. If evidence suggested that E gave the document on her own accord, then this argument would be weakened. Thirdly, the two schemes give Palma wider discretion in selection and negotiation.4 On the contrary, an argument in favour of the document being deemed an offer is that it was given to one party. However, following Carlill, this appears irrelevant.5 It appears that an offer has not yet been made.
C’s Email Reply
The issue is whether C’s email reply constituted an offer. First it is to be established that a binding agreement has not formed. An agreement can be objectively established where there is mutual assent.6 In Masters v Cameron,7 it was noted that, ‘the case may be one in which the intention of the parties is not to make a concluded bargain at all, unless and until they execute a formal contract’. Such intention can be...
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