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Establish whether the parties in question have reached an agreement
Melaine ask mike whethere he would be willing to accept £50 for them. Mike says he will have to think about it.(COUNTER OFFER)
The next day melaine telephones the shop to find out whether mike will agree to sell the dolls at her asking price but mike says that he has not yet made up his mind.
Melaine then tell mikes that if he does not telephone her by Wednesday afternoon then she will assume the dolls have been sold to her.(COMMUNICATION OF ACCEPTANCE)
On Wednesday morning mike decides to sell the toys to melaine and stores them in a wooden box with a label that has melaines name written on it. The box is placed on the shop counter ready for collection.(ACCEPTANCE)
On Wednesday afternoon melaine returns to shop and finds that the wooden box is emplty. It turns that mike shop assistant did not read the label because he was not wearing his glasses and removed the dolls from inside the box which were subsequently sold to another customer.
Advise melaine illustrating your answer with reference to case law.
Would your answer be different if melaine and mike had a previous course of dealing.
Firstly The issue in this problem concern about offer ,invitation to treat, offer and acceptance, communication of acceptance and effect of silence. But the point of concern is to establish whether the parties in question have reached on agreement in the eyes of law. In this mike v melaine case the classical model for deciding whether there has been an agreement between the both parties specifies that a contract must consist of an offer, acceptance and consideration. The courts will also look for intention to form legal relations. Consequently, in order for any of the parties to reach agreement, the aforementioned elements need to be apparent.
Invitation to treat:
Firstly in mikes shop mike put a antique toy shop to sell and it was a invitation to treat not an offer. Lets talk about invitation to treat. An invitation to treat is a truncation involve a preliminary stage in which one party invites the other to make an offer.(Elliott & Quinn)
The famous case Fisher v Bell talk about invitation to treat. In this case it was held that where goods are displayed in shop self with price tag is an invitation to treat not an offer by the seller. The summary of this case is like that defendant displayed a knife in the window of his shop next to a ticket bearing the writing Ejector knife -4s.which is restriction of offensive weapons Act 1959.
But the court said that displaying a knife in shop display is an invitation to treat not an offer. (Bailli).
In the case of pharmaceutical society of Great Britain V Boots cash chemists(southern)1952 Boots Cash Chemists had just implemented a new method for its customers to buy certain medicines. They would let shoppers pick drugs off the shelves in the chemist, and then pay for them at the till, rather than require all medicines to be behind a counter and for an assistant to have to get what was requested. The Pharmaceutical Society of Great Britain objected, and argued that under the Pharmacy and Poisons Act 1933, this was an unlawful practice.Boots argued it was not an offer I,it will effective when the item goes to till. The court said that that displaying a item on the shelve is not an offer it would be an invitation to treat.(case & materials by Geoffrey Samuel)
so in this mike v melaine case it is clear by the given case references that its not an offer because it was an invitation to treat. it would be offer by if Melaine took this item from the self to pay.
In this case melaine made an offer to the Mikes that if he could sell this with £50.so lets talk about how offer can be done. An offer is an express of willingness to be bound by specific terms, made with intention that it shall become binding as soon as it is accepted by person to whom it is addressed or an offer can be done by the conduct of parties. There is a clear example of offer how made in the case of Smith v Hughes. In this case the plaintiff offered to sell to the defendant oats, and exhibited a sample; the defendant took the sample, and on the following day wrote to say that he would take the oats at the price of 34 per quarter. The defendant afterwards refused to accept the oats on the ground that they were new, and he thought he was buying old oats; nothing, however, was said at the time the sample was she own as to their being old; but the price was very high for new oats. The judge left to the jury the question whether the plaintiff had believed the defendant to believe, or to be under the impression, that he was contracting for old oats, and, if they were of opinion that the plaintiff had so believed, he directed them to find for the defendant. So the one of the Jury Per Cockburn, C.J said that on the ground that the passive acquiescence of the seller in the self-deception of the buyer did not entitle the latter to avoid the contract.(UK LAW ONLINE)
We talked about offer but in this case it was not an offer by the Mikes. If Mikes individually made an offer with Melaine and melaine asked to reduce the prize then it could be an counter offer. In the counter-offer, the offeror becomes offeree. A case reference is given as a example of counter offer. In the case of Hyde v Wrench(1840) the plaintiff wrench offered to sell his estate for £1000 , H offered £950. 27 June W rejected H's offer, 29 June H offered £1000. W refused to sell and H sued for breach of contract.
Lord Langdale MR held that if the defendant's offer to sell for £1,000 had been unconditionally accepted, there would have been a binding contract; instead the plaintiff made an offer of his own of £950, and thereby rejected the offer previously made by the defendant. It was not afterwards competent for the plaintiff to revive the proposal of the defendant, by tendering an acceptance of it; and that, therefore, there existed no obligation of any sort between the parties.( www.law-essays-uk.com)
So in this case Mikes did not make an individual offer to the Melaine. If Mikes have been made an offer to the melaine like this and melaine asked to reduced the prize then and it could be a counter offer. And we can see by the Hyde V wrench case that a counter can be rejecte by the offeror who was previously offeree. So in Mikes v Melaine case it was not a counter offer aswell.
We should see that whether the offer made Melainee was accepted by the Mikes or not.
Acceptance is a final and unqualified expression of assent to the terms of an offer.Once an offer is accepted by the party whom it is subjected to, then the offer cannot be terminated. it become then binding to the offeror. A case which is related to acceptance of offer.
Peter lind & co ltd V Mersey docks 1972 An offer to build a freight terminal was made by a tender quoting in the alternative a fixed price and a price varying with the cost of labour and materials. The offeree purported to accept “your tender" and it was held that there was no contract as there was no way of telling which price term had been accepted. So in this Mkes v Melaine case there is no clear acceptance by the Mike.
Acceptance by conduct:
So lets see whether in this case it is acceptance happened by the conduct. Beta computers (Europe) and adove systems (Europe) 1996 is a good example of acceptance by conduct. Where a notice on a package containing computer software stated that opening the package would indicate acceptance of the terms on which the supply was made, and the customer returned the package unopened.(westlaw)
So in this Mikes V Melaine case the acceptance is not happened by conduct. Mikes was silence when Melaine ask him about the new prize so in here mike was silence. so we should see the effect of silence.
Effect of silence: When someone makes you an offer and you do not respond to it, you normally will not be bound to a contract since your silence is generally not considered an acceptance if you truly do not intend to accept. This is generally true even if the person making the offer specifically says that your silence is considered an acceptance. A clear example of silence in contract is Felthouse V Bindley . And this case is one of the leading case in English contract law. Because by this case decision we can see that silence is not amount to acceptance. In this felthouse case the court said that acceptance must be clear and communicated and can not be imposed because of silence.(unlocking contract law 2nd edition)
The answer of second question of this coursework will be yes. My answer will be different If they had a previous course of dealing because then they know their communication way, how they communicate with each other so the offer would accepted by the conduct.
Finally my advise to melanie will be that he will not get any remedy by imposing liability on mikes. Because in here acceptation is not clear.Melainie can not impose liability on Mikes because he was silence. Melainie could get remedy if they had a previous course of dealing.
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