Car Sale Advertisement Issues and Relevant Authorities

Mary wanted to sell her car, so she put up an advertisement on the university notice board.

Offered for sale- Fiat Punto 2001. Metallic red and white- good condition for its age- £1000

Fully explain how the rules of contract apply to each of the event described above, make sure that you cover all of the legal issues mentioned and include relevant authorities.

CONTRACT

The Osborn’s concise law dictionary (9th edition) defines contract as:

“An agreement enforceable at law.An essential feature of a contract is a promise by one party to another to do or forbear from doing certain specified acts. The offer of a promise becomes a promise by acceptance. Contract is that species of agreement whereby a legal obligation is constituted and defined between the parties to it.”

Also a contract is a legally enforceable agreement between two or more parties with mutual obligations. The remedy for breach at law is ‘damages’ or monetary compensations. In equity the remedy can be specific performance of the contract or injunction.(Randy, E. Contracts, 2003)

The most important feature of a contract is that one party makes an offer for an arrangement then the other accepts, this can be called a concurrence of Wills or ‘consensus ad idem’(meeting of minds)

For a contract to be binding and legally enforceable there must be: capacity to contract, intention to contract, consensus ad idem, Valuable consideration, legality of purpose, sufficient certainty of term.

It must be noted that it is a core requirement that contracts generally must be in writing to be valid and enforceable.

I shall now discuss the scenario against the backdrop of the definition and ingredients of a valid contract.

In the scenario it is settled that Mary wanted to sell her carand thus she ‘advertised’ the sale of her car. By so doing Mary did what is known in contract law as ‘Invitation to treat’. What this means is thatMary invited prospective buyers to a treat of buying her car. This in itself is not binding on either Mary or any of her prospective buyers.

I shall be doing a cursory look at each invitation to see if Mary is legally bound by any of it.

The first to be considered is the invitation to treat she made through her advertisement.

I have already mentioned that invitation to treat is not a contract and is therefore not admissible. Thus in the case of Partridge v Crittenden[1968] 1 WLR 1204. The defendant was charged with the offence of ‘offering for sale’ bramble finch cocks and hens. The court held that the newspaper advertisement could only be considered an invitation to treat since it was an advert made to the whole world and cannot be an offer.

Similarly in the case of Fisher v Bell [1961] 1 QB 394,the defendant was charged with displaying different kinds of prohibited knives in the show glass in his shop which he offered for sale. The courts also held that it was merely an invitation to treat.

Furthermore a display of goods on a shelf in a self-service store is also an invitation to treat with the offer being made by the purchaser at the check-out and the offer being accepted by the office assistant at the check-out. This was the decision in the case of Pharmaceutical society of Great Britain v Boots Cash Chemists(southern) Ltd.[1953] 1 QB 401.

However in the case of Carlill v carbolic smoke ball company [1893] 2 QB 256 it was held that the invitation to treat since it carried a condition which made it unilateral in nature is not an invitation to treat upon meeting that condition by the person making the offer.Here the tobacco company offered a price of £100 to any person who could take their product and still catch a flu because they claimed to have developed a new tobacco which prevents flu. The plaintiff did and caught a flu it was held to be an offer because of the condition that he had performed and the fact that the company had made a deposit of £1000 in the bank. Linley J, held that it was unmistakably an offer and that people inconvenienced themselves to meet with it.

In the first case Mary told her friend about the car and even made promises that she would reduce the price for a quick sale but didn’t mention the price. At that point Mary said she would think about it. There was no ‘consensus ad idem’ that is, there was no meeting of minds,no mutual contractual spark leading to a legal relationship.

Rose’s message offering Mary £800 was now Rose’s offer which Mary may choose to accept or reject or not even respond to.

In the second case, that of Mathew, he also made no offer to Mary. He told her that ’if’ he could get the money from his dad. That was not an offer that was a mere wish.

In the third case, that of John, it could seem a little dicey but, there was still no meeting of minds. True John dropped a Cheque of £1000 for Mary, but that does not seal the deal. Mary’s invitation was made to the whole world through the advertisement hence she owes no one contractual obligation until she accepts money from any of them.In this instance she didn’t, hence no legal relationship.

In the fourth case, that of Louisa, there was no valuable consideration. The favors she claims to have done for Mary was merely gratuitous and did not create any legal relationship.

The fourth case evinces the evolvement of a contractual relationship.There was a meeting of the mind, valuable consideration and execution.

In conclusion, the criteria for a valid contract is offer, acceptance, consideration and the use of express and implied of which some of them did not fulfill the criteria. Also, since all parties involved just had oral agreement there was no binding therefore there was no contractual agreement thus the reason for the on the spot sale of the car to Richard.

 

TORT

Tort from the Latin word tortus (twisted or crooked) can be defined as a wrongful act for which damage can be obtained in a civil court by the person wronged other than a wrong that is only a ‘breach of contract’. The law of tort is mainly concerned with providing compensation for personal injury and property damage caused by negligence- (oxford: dictionary of law, 7th edition)

The case of Donoghue v Stevenson is the ‘locus classsicus’ case on the Tort of Negligence and it was a decision by the House of Lords. They set out the general principles whereby one person would owe another person a duty of care.

It is often referred to as ‘the snail in the bottle case’ or the ‘paisley snail case’ since it was decided as paisley in Scotland. It is one of the most famous cases in British legal history.

FACTS- “On the evening of Sunday 26 August 1928 May Donoghue, boarded a tram in Glasgow for the 30 minute journey at around ten minutes to nine she and her friend stopped at a café in the area for a drink.They ordered pear and ice and an ice-cream drink. On pouring ginger beer from an opaque bottle of ginger beer into the tumbler of ice-cream, a decomposed snail dropped into the tumbler. Later Donoghue claimed she had stomach cramps and her doctor later confirmed that she was in a state of severe shock.”

Hence the action, In common Law a person can claim damages from another person where that other person owed the first person a duty of care and harmed that person by their conduct in breach of that duty.

It is true that there was no contractual relationship between Donoghue and the manufacturer of the drink Stevenson, but a manufacturer owes a duty of care to consumers of his product.

Duty of care as defined by the Osborne’s concise Law dictionary means:

“The interests that are protected by the Tort of Negligence. It determines whether that type of loss that suffered by the plaintiff can be actionable or not”.

The leading judgment in the case was delivered by Lord Atkin. The most famous part of the decision was his explanation of the ‘neighbor’ principle, which was derived from the Christian principle of “loving your neighbor”. He said:

“You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbor. The question is:

who in law is my neighbor? The answer seems to be – persons who are so directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions in question”

Lord Atkin was of the view that a manufacturer of consumables must take due care in the preparation of such products in order that he may avoid injury to such consumers,anything short of this will be a breach of the duty of care.

“A man has a duty of care to conduct himself in such a way as to avoid harm to others, where a reasonable man would have seen that such harm could occur”.-Lord Atkin.

Thus the harm or injury done must have been reasonably foreseeable. The person in breach must have been negligent in taking reasonable care.

Lord Atkin used the bible bookof Luke chapter 10 to analyze the duty of care owed by manufacturer to consumer examining the story of the Good Samaritan in the parable.

In summary, the land mark case of Donoghue v Stevenson is authority for Negligence where there is a duty of care. And as we have seen duty of care arises from the chain of causation which is the chain in connecting the act or omission of the defendant to the harm or injury suffered by the plaintiff. This was the ratio decidendior the reason for the decision in the case of Donoghue v Stevenson.