Offer and Acceptance

Without offer and acceptance there can be no contract and so it is essential that the law provides rules to identify what constitutes both an offer and an acceptance. An offer may be defined as a statement of willingness to contract on specified terms made with the intention that, if accepted, it shall become a binding contract. An offer may be express or implied from conduct. In many cases it is crucial to determine when and where a contract is actually formed and this too needs rules. In the vast majority of contracts these rules do not prove difficult to explain or complicated to apply but in some areas there is confusion.

Initially there can be significant problems in identifying what an offer actually is. An offer must be distinguished from and invitation to treat which is generally just an indication that one party is trying to elicit offers from the other. Invitations to treat include newspapers advertisements (Partridge v Crittenden), goods in shop windows (Fished v Bell) and goods on shop shelves (Pharmaceutical society of GB v Boots). Even if a sign in a shop window declares “special offer” it is still not legally an offer.

All these distinctions are well established but there is some difficulty in separating an invitation to treat from a unilateral offer. Unilateral offers are ones made to the entire world which generally require some conduct to fulfil. In Carlill v Carbolic Smoke Ball the claimant tried to get compensation promised to customers who, responding to an advert, used a product and still contracted influenza (flu). It was held that the advert was so specific it was lifted above and invitation to treat, thus becoming an offer.The difficulty this poses for lawyers is where the distinction lies. How specific does and advertisement have to be in order to qualify as an offer? Not only do consumers suffer from this confusion but retailers too, perhaps finding themselves inadvertently making unilateral offers to which they will be bound –