Judgment on the nature of an offer

Pharmaceutical Society of Great Britain v Boots Cash Chemists (Southern) Ltd [1953] 2 WLR427 Case Analysis

Pharmaceutical Society of Great Britain v Boots Cash Chemists (Southern) Ltd [1953] 2 WLR427 is a well-known English contract law judgment on the nature of an offer. The Court held that the exhibition of a product in a store with a price attached is not adequate to be considered an offer, although relatively is an invitation to treat. Boots Cash Chemists had presently employed a new technique for its customers to purchase certain medicines. They would let shoppers single out drugs off the shelves in the chemist, and afterward recompense for them at the till, rather than involve all medicines to be behind a counter and for an associate to have to get what was asked for.

The Pharmaceutical Society of Great Britain objected, and disputed that under the Pharmacy and Poisons Act 1933, this was an illegal performance. Under s 18(1), a pharmacist required to administer at the point where "the sale is effected", when the product was one scheduled on the 1933 Act's program of poisons. The Society disputed that exhibitions of goods were an "offer" and when a purchaser preferred and placed the drugs into their shopping basket this was an "acceptance". Therefore since no pharmacist had overseen the operation at this summit, Boots was in violation of the Act. Boots disagreed that the auction was still merely exaggerated at the till.

The date in the case reference is enclosed within square brackets, that is, [1953] 2 because as a primary source in law reports and citation of cases, when a case can be located using the date alone, that date is enclosed in square brackets. The year in square brackets refers to the year of the decision, the square brackets indicate that this year also serves as a volume number, and thus is required to locate the report. The 2 indicates the case is found in volume 2 of the 1953 reports. Thus, in this particular case, the case could be located by using the date alone. Otherwise, if the case can be located using other methods like using the volume number, the date can be enclosed with round brackets. It is also important to note that any citations prior to 1953 will be for the case at first instance, which is not a citation of the case under discussion.

This case appears to have been reported in other series of reports. [1953] WL 13966(CA); 117 J.P. 132; [1953] 1 Q.B. 401, [1953] 1 All E.R. 482 ; [1953] 1 All E.R. 482; [1953] 2 W.L.R. 427; (1953) 97 S.J.149; [1953] 1 Q.B. 401; [1953] EWCA Civ 6. The court's decision that appears in the report cited is Court of Appeal. The case was heard and decided on 5 Feb 1953. There is no indication that judgment was reserved, and the lack of any date other than the sitting date, or an indication of reservation such as cur ad vult would indicate that judgment was not reserved. The judges in the case Somervell, Birkett and Romer LJJ; seniority; three-uneven number needed for appeal; convention that one judge does not sit alone in judgment upon a brother judge.

The counsel for the parties in this case Lord Goddard C.J. – heard matter at first instance, therefore his judgment does not form part of this case, but may be reported elsewhere. Somervell LJ is the most senior judge sitting on the appeal and each party in the case solicitors and barristers was represented by Appellant: H.V. Lloyd-Jones Q.C. and T. Dewar instructed by A.C. Castle; Respondent: G.G. Baker Q.C. and G.D. Everington instructed by Masons.

The Pharmacy and Poisons Act, 1933 requires the auction of poisons to be effected by or under the management of a recognized or registered pharmacist. Boots ran a retail pharmacy, which sold poisons limited under the Act, which they had restructured into a self service pharmacy. A registered pharmacist managed each operation relating to a poison or medicine at the summit of transaction. Customers nevertheless were liberated to opt for such products from the shelves of the pharmacy and position them in their shopping baskets prior to approaching the money desk to reimburse. Two bottles of drugs were acquired from Boots in this approach.

The head note suggests that, “The question for the opinion of the court was whether the sales instanced on April 13, 1951, were affected by or under the supervision of a registered pharmacist, in accordance with the provisions of section 18(1)(a)(iii) of the Pharmacy and Poisons Act, 1933." However the issue of law with which the court is concerned is better stated by Birkett LJ at 407: “the short point of the case is, at what point of time did the sale in this particular shop in Edgeware take place?" Or by Somervell LJ at 405: “what are the legal implications of this [self service] layout – the invitation to the customer. Is a contract to be regarded as being completed when the article is put into the receptacle,…[or] having got the ones which they wish to buy, to come up to the assistant …the money passes and the transaction is completed." In other words, is the display of goods on a shelf in a shop an offer or an invitation to treat?

Fisher v Bell [1960] 3 WLR 919 Case Analysis

This was a Case Stated by justices for the City and County of Bristol in high opinion of their arbitration as a judges’ court session in Bristol on Feb. 3, 1960.

A storekeeper exhibited in his shop window a knife with a worth label behind it. He was charged with donating for trade a flick knife, opposing to s. 1 of the Restriction of Offensive Weapons Act, 1959. On Dec. 14, 1959, information was favoured by the plaintiff, a principal superintendent of police, against the respondent.

The material facts of the case Fisher v Bell [1960] 3 WLR 919 Case analysis illustrate that there are no issues of fact – this is an appeal. Note the opening words of Somervell LJ at 404: “This is an appeal from a decision of the Lord Chief Justice on an agreed statement of facts…" The ratio of Lord Parker CJ's judgement is well articulated by Somervell LJ at 406: “although goods are displayed…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." In other words, the display of goods in a shop constitutes an invitation to treat.

The justices were of the view that, in the nonappearance of a description in the Act of 1959, the expression "offer for sale" must to be construd as they were in the decree of agreement, so that, in this occurrence, the respondent's accomplishment was simply a provocation to delight and not a definite offer which needed but a customer's reception to formulate a binding agreement for trade, and, consequently, they discharged the information.

Lord Parker CJ’s reasons for distinguishing Keating v Horwood were that the storekeeper was not blameworthy of the offense with which he was charged since the exhibition of the knife in the shop window was simply a request to delight and the storekeeper had not in so doing presented the knife for transaction, in the connotation of s. 1 (1) of the Act of 1959. He further explains that at first prospect it appears ridiculous that knives of this nature may perhaps not be manufactured, they might not be sold, they might not be rented, they might not be borrowed, they might not be given, but apparently they might be exhibited in shop windows; but yet if this is a casus omissus – “and I am by no means saying that it is-it is not for this court to supply the omission." The decision of The Other Two Judges conquered with that of Lord Parker CJ.

In giving his judgments, LORD HEWART, C.J., said "It appears to me to be a naked usurpation of the legislative function under the thin disguise of interpretation...For my part, approaching this matter apart from authority, I find it quite impossible to say that an exhibition of goods in a shop window is itself an offer for sale. AVORY, J., agreed saying, "the question is whether, on the facts, there were (i) an offering, and (ii) an exposure, for sale. In my opinion, there were both." SHEARMAN, J., however, said n(7): "I am of the same opinion. I am quite clear that this bread was exposed for sale, but has had some doubt whether it can be said to have been offered for sale until a particular loaf was tended to a particular customer."

There are three subject matter to monitor on that case. The initial is that the command evidently enclosed the expression "expose for sale", and, on whichever outlook, there was in that case a revealing for auction. Consequently, the question whether there was a tender for auction was pointless for judgment. Secondly, the principles of common agreement regulation were certainly not referred to; and thirdly, albeit the entire part of the second argument, the respondents were not embodied and there was, in reality, no disagreement. “For my part, I cannot take that as an authority for the proposition that the display here in a shop window was an offer for sale. The judgements were the same and therefore appeal was dismissed."Leave to petition to the House of Lords was repudiated.

The other case to which I should refer is Wiles v. Maddison n(8). LORD PARKER CJ gives several reasons for distinguishing Wiles v Maddison, It was established that the defendant had the purpose to perpetrate a felony. “I find it unnecessary to go through the facts of that case, which was a very different case and where all that was proved was an intention to commit an offence the next day", however, in the line of his verdicts, VISCOUNT CALDECOTE, C.J., said n(9):

"A person might, for instance, be convicted of making an offer of an article of foot at too high a price by putting it in his shop window to be sold at an excessive price, although there would be no evidence of anybody having passed the shop window or having seen the offer or the exposure of the article for sale at that price."

Yet again, be it observed that was a case where, under the Meat (Maximum Retail Prices) Order, 1940, the words were: "No person shall sell or offer or expose for sale or buy or offer to buy..." Although LORD CALDECOTE, C.J., does consign to the creation of an offer by placing a piece of writing in the shop window, prior to the condemnation being closed he has, actually, turned the expression to one of revealing the editorial. He cannot obtain some support in goodwill of the plaintiff from that channel. As a result, he comes to the finale in this case that the justices were accurate, and this petition must be discharged.