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"The transmission of such a price-list does not amount to an offer to supply an unlimited quantity of the wine described at the price named, so that as soon as an order is given there is a binding contract to supply that quantity. If it were so, the merchant might find himself involved in any number of contractual obligations to supply wine of a particular description which he would be quite unable to carry out, his stock of wine of that description being necessarily limited. I entertain, I confess, a very clear opinion that the Solicitor-General was quite right in arguing the case on the assumption that no sales were made in this country." Lord Herschell Just over one hundred years ago the above ratio-decendi was given in what was at the time a case concerned with alleged back taxes owed by Grainger & Son. Grainger & Son henceforth referred to as G&S were British wine merchants who as a side venture passed on the price lists of a French wine producer to their customers. G&S received a commission on any orders placed with said producer and paid tax on this commission. Gough claimed that tax was payable on the whole value of these sales not just the commission element. Monsieur Roederer henceforth Mr R was a wine producer located in France. He decided whether to accept orders the orders gathered by G&S or not. The reason for this being that the wine was shipped out ahead of any payment being received and Mr R wanted to vett his customers credit worthiness. The wine was shipped directly to the customer in the UK from France. Most customers settled their accounts directly with Mr R. A few customers instead made payment to G&S who would pass on to Mr R any amounts in excess of the commission they happened to be owed. In summary the flows of events are: Mr R, located in France, sends price list to G&S in Britain G&S distribute price list Customer places, for want a better word, an order with G&S for wine produced by Mr R G&S forward order to Mr R Mr R dispatches wine to customer Mr R dispatches bill for said customers wine to G&S for onwards transmission G&S forward bill to customer Customer sends payment to Mr R "“ occasionally made to G&S who forward this to Mr R Mr R sends receipt to customer G&S pay tax on commission received G&S maintained that they entered no contracts regarding Mr R's wine. Gough held the converse view that G&S entered contracts themselves and thus sold Mr R's wine. Our starting point must be to define what a contract under English law is. The Jurists Bentham and Austin have laid down that the "two main essentials of a contract are these: first, a signification by the promising party of his intention to do the acts or to observe the forbearances which he promises to do or to observe. Secondly, a signification by the promise that he expects the promising party will fulfil the proffered promise." More precisely to form a contract under English law the following elements are required i a valid offer has been proffered by the first party to another party or parties ii the offer has been accepted unchanged by the second party or parties and this has been communicated to the offerer . iii there is an intention by all parties to create legal relations when they entered into the contract and the parties have the capacity to contract iv the promises made within the contract are for valuable executive consideration and v the terms of the contract are certain. Did Mr R make an offer through the medium of his price list. Looking in Mozley and Whiteley"s Law dictionary an offer is "An expression of readiness to do something e.g. to purchase or sell". Mr R is saying that he is willing to sell wine. Based on this definition initial opinion would say that the price list does constitute an offer. Continuing with this line of thought G&S acted in an agency capacity for Mr R making an offer to the customers they approached and receiving the acceptance of any order. If the customers accepted G&S's offer made via the medium of the price list then Mr R merely shipped directly from France. The bills for said wine were sent to G&S who would then forward them on to the British customer. These points all suggest that the sale was made in the UK by G&S. The listing of Mr R, in the Post Office London Directory, as trading from G&S's establishment further hints at an agency type arrangement. Much of the argument supporting the invitation to treat viewpoint is by drawing analogies with cases involving auctions such as Payne v. Cave 1789 and Harris v. Nickerson 1873 in which both concluded that bidders make an offer which the auctioneer is free to accept or not. The bidder's offer being retractable until accepted by the auctioneer . The pricelist could be seen as statement of the minimum price at which Mr R would bewilling to sell wine drawing analogies with Harvey v Facey 1893. Mr R's supply of wine in any year is finite and demand could outstrip supply leaving an impossible back log of orders all demanding specific performance. Mr R could possibly, though extremely doubtfully, claim the defence of frustration as the things contracted for no longer exist. Add to this Mr R's option to reject any order makes it appear that his price list is an invitation to treat as otherwise it would be an offer that is subject to revocation without notice. Acceptance of an offer has to be communicated. At the time of this case, 1896, the only readily available methods of communication for distant parties were the postal system or telegram. The postal rule would apply to any customers acceptance sent via these mediums and hence any revocation of the offer would be impossible The final item to consider is the peculiar concept of consideration to be found in the English legal system and those derived from it The 1677 Statute of Frauds made consideration vital in any contracts not made under seal. G&S received no consideration for the wine therefore they could not be a party to the contract. [Transfer of title occurred only between Mr R and the customer]. That occasionally the payments for the wine were made to G&S instead of directly to Mr R was held to be equivalent to Mr R, for the sole convenience of his customers, operating a British bank account to receive payments. Graiger v. Gough was one of the major cases in the creation of the principle of invitation to treat. In order to explore this principle more fully the case will be re-examined as it occurred today. Once again the starting point is was the price list an offer or merely a willingness to deal. There are a number of variants on an invitation to treat these are: pre-contractional negotiations , shop displays and finally advertisements. G&S's supply of the price list to potential customers is a form of direct marketing and falls under the last of these three categories. To be classed as a unilateral offer the price list would have to show some intention to be bound by pro-offering a tangible benefit, in excess of sales puff, that could be accepted by performance rather than communication . Is there any similarity to Bowerman v. ABTA 1995 or Carhill v. Carbolic Smokeball Company 1892. If the answer to this is a negative then the next step is to determine where the act of offer & acceptance occurs. In a face to face situation such as a shop the customer offers to buy goods by presenting them at the till and the shop either accepts or rejects this offer to buy. The goods on the shelves are merely invitations to treat in keeping with the findings of Fisher v. Bell and Pharmaceutical Society of GB v. Boots Cash Chemists. The views of this in America and the European Community are slightly different. Although it seems odd that a shop would not want to sell its stock the English legal system is designed to achieve consistency even if it has to distort the persons actual intent. This produces oddities such as Partridge v. Crittenden 1968 where a newspaper advert to sell wild birds was found to be an invitation to treat not an offer to sell so the defendant escaped prosecution under the Protection of Birds Act 1954 . A key point in the original Graniger v. Gough was where was the contract made. Today the location of the act of contracting can be different depending on the mode of acceptance. The postal rule puts acceptance at the place of posting. Where both parties use a telex or nowadays facsimile machine the Court of Appeal decided in the case of Entores Ltd v. Miles Far East Corporation 1955 that the contract was entered into when and where the acceptance was received. Lord Denning confirmed, obiter" that the same principles also apply to acceptances by telephone. Answering machines and voice mail are assumed to at maximum delay receipt of the acceptance till the next working day rather than grant them an agent status capable of entering contracts. Faulty hardware, lack of link & paper or sloppy business practice, such as not checking the fax for days, does not stop or delay the acceptance of an offer. Public holidays and weekends however do delay acceptance till the next working day. E-mail contrary to popular belief is not always an instant form of communication. An e-mail may pass through a number of third parties networks & servers and could quite possibly be considerably delayed. Also the recipient has to actively retrieve their e-mail from their service providers or works mail server. The Uniform Laws on International Sales Act 1967 sets out that the acceptance of an offer becomes effective at the moment the indication of assent reaches the offeror . But is the offer accepted in the country of the readers computer or where the email server is hosted? If a person picked up the contents of their phones answer machine in a country different to that which said machine was in, where was the contract made. Within closed networks or Electronic Data Interchange systems mail delivery is more reliable and it may be possible to tag the e-mails so they generate a receipt message upon reaching their destination and upon being read. The EDI Trading Partner Agreements will also outline when acceptance takes place and which countries laws apply. If Mr R had a website that could receive customer orders would it be an invitation to treat or an electronic contracting agent ? A non-interactive site just listing his wines would most certainly be classed as an advert. This question is under consideration by may of the worlds legal minds. Unfortunately the Argos £2.99 television and recent Kodak £100 digital camera incident never made it to court so there is no precedent. The Kodak site took the customers order and issued an order confirmation which the customer was asked to retain for warranty service. Consumers would believe that having placed their order and given their credit card details and been told that the £100 will be charged to their card along with receiving an acknowledgement ,that their purchase has been made. This "clickwrap contract" is what the law calls a "contract of adhesion" -- a contract you didn"t really bargain over in any way, but which was presented as more of a take-it-or-leave-it offer . Kodak made such a bad bargain that everyone wanted to take it The only case on web based retail sales so far is American where the court stated "such an automated, ministerial act cannot constitute an acceptance" which does little to resolve the issue. As international web based commerce increases, instances similar to Gough v. Granger will become more common. Will the concept of invitation to treat expand outside of legal systems based around Anglo-American common law bringing some consistency to the dynamics of offer & acceptance or will the EU idea of its an offer until the stock runs out be adopted.
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"The transmission of such a price-list does not amount to an offer to supply an unlimited quantity of the wine described at the price named, so that as soon as an order is given there is a binding contract to supply that quantity. If it were so, the merchant might find himself involved in any number of contractual obligations to supply wine of a particular description which he would be quite unable to carry out, his stock of wine of that description being necessarily limited. I entertain, I confess, a very clear opinion that the Solicitor-General was quite right in...
bad bargain that everyone wanted to take it

The only case on web based retail sales so far is American where the court stated "such an automated, ministerial act cannot constitute an acceptance" which does little to resolve the issue.

As international web based commerce increases, instances similar to Gough v. Granger will become more common. Will the concept of invitation to treat expand outside of legal systems based around Anglo-American common law bringing some consistency to the dynamics of offer & acceptance or will the EU idea of its an offer until the stock runs out be adopted.

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Living Wills, sometimes called Advanced Directives,...Living Wills, sometimes called Advanced Directives, are legal documents accepted in all 50 states. They clearly define a person's wish to decline life-support or medical treatment in certain circumstances, usually when death is imminent. Generally, a living will takes effect when a person becomes terminally ill, permanently unconscious or conscious with irreversible brain damage. A living will also allows a person to state with particularity the forms of treatment are wanted and not wanted. For example, if a one does not want artificial life support, then sign the living will stating that desire. It is also important to discuss your beliefs and wishes with you family, spouse and other people whose opinions you respect, such as clergy, physicians, attorney or an accountant. Living wills are recognized in every state, but each state has different requirements. If someone is interested in making a living will, contact an expert in the state that you live in, such as a hospital, local agency on aging or local bar association. To help ensure that the living will be honored, give copies to family members, physicians, lawyer and other involved in caring for the person's welfare. Federal law now requires most health care facilities hospitals, nursing homes, HMOs and home health agencies to ask patients if they have a living will or would like to complete one. Can Medical Care Legally Be Stopped If There Is NO Living Will? When there is no written document, a spouse or close family member may still request that treatment be withheld if the patient cannot do so, but the request could be denied. The way states and health care providers handle such cases varies widely. Typically, a doctor or hospital representative will meet with a person's family to discuss what that person's wishes were. In some cases a health care facility may want to withhold or provide life support against a family's wishes. In some cases a formal hearing may be held to determine how to proceed. How To Make A Living Will The rules for preparing a living will vary from state. Some states require that the document be signed with the same formalities required for execution of a will, but many state recognize the effectiveness of more informal declarations. Generally a living will: Should Be in Writing. Should Be Signed and Dated. Should Be Signed Voluntarily Should State Specific Treatments It is evidence of the patient's wish, and it is the patient's wish that has legal force, not the document. Living wills cannot request euthanasia or unreasonable treatment. Living wills, once activated, should ensure that your physician and the medical facility uphold your health care treatment beliefs and wishes. Your family or your physician cannot revoke them; your living will can only be revoked orally by you or by court acting on your behalf. With a living will, you maintain control over your end-of-life decisions. If your wishes are explicitly stated in your living will, your doctor and your family should not be able to supersede them. As long as your wishes are known, they should be respected. Limitations to the Power of a Living Will Remember that living wills only become active when the patient becomes terminally ill "“ when death is imminent and the patient can no longer communicate his/her wishes to their physician, spouse, or family. Living will DO NOT become active immediately after you sign them. It is important that one discuss their feelings about health care options with their physicians. Many doctors are not yet comfortable with the idea of living wills so they may be hesitant to encourage their patients to consider the alternatives options and issues surrounding living wills and health care options. In addition, the legality of living wills is still being challenged in about 25 percent of all cases, decisions are made -"“ by family or physician "“ that are contrary to the patient's wishes as stated in their living will i.e. the court determined that the patient's death was not imminent, therefore, the constraints and treatment preferences stated in the living will were not yet activated. However, living wills are preferences stated in the living wills are gaining legal power in the eyes of the U.S. Supreme Court reaffirmed the constitutionality of honoring a refusal of treatment and stressed the difference between types of end-of-life decisions and physician-assisted suicide. The living will can be written or oral. It must not have been made under pressure or coercion. The person must have been competent of that time to make the decisions involved. This is presumed unless there is evidence to the contrary. Note: a person may have a mental illness and still make a valid living will as long as they understood the implications of what they were doing. Competency means competent to make the decisions in question, not necessarily competent to make other decisions such as, relating to financial affairs. If the living will applies exactly to the circumstances that subsequently arise, health care professionals must follow it. If it does not apply exactly, by describes a general wish, then the health care team should consider it among other evidence of what the patient would wish. Relatives may also be able to supply information on the patient's wishes. Having gathered all the information, a health care decision should be made on the basis of the patient's best interests with due regard to their wishes, as well as these can be determined. Writing Your Own Living Will When signing a Living Will make sure that a statement is enclosed specifying your "WISHES" about the extraordionary measures to be taken to keep you alive if you become permanently unconscious or terminally ill. Make sure you express your beliefs fully and as explicitly as possible. It is strongly recommended but not essential that you consult an attorney when writing a living will. Your attorney will best be able to help you develop your health care preferences and beliefs into a document that clearly states your wishes. If you do not have an attorney and still plan to write your own living will, consider obtaining a copy of a living will form from your state health department, local hospital, local Area Agency on Aging, or physician. You can use the living will form as a guide to help you think about and formulate your ideas concerning your preferences. When developing your living will, you need to think about possible treatments that you may or may not wish to receive under various conditions. Some treatments you may wish to withdraw only in certain circumstances, others you may always wish to receive. Your living will should clearly state how you feel about receiving certain types of treatment in various health-care situations. Some of the options are explained below: DNR "“ "Do Not Resuscitate" order DNR simply states that if you are deemed by a physician to be terminally ill, you do not wish to receive cardio-pulmonary resuscitation CPR if your heart stops beating or you stop breathing. You feel that CPR will be futile or will serve to only prolong your life. Surgery "“ If you become terminally ill, you may not wish to have surgery, es-pecially if that surgery is elective or if it life-prolonging in the case of imminent death. For example, a terminal cancer patient may not wish to have minor surgery, such as a tonsillectomy if they have tonsillitis. If you are writing your own will, you may want to make your wishes regarding surgery case specific, you have the ability to state what YOU want. Pain Medication. A living will should address the types of medication you wish to have administered and under what circumstances. Respirators "“ Respirators are a means of artificial respiration for patients who cannot breathe on their own.. If you disagree with the means or "artificial" medical treatments, these should be address in the living will.   

Living Wills, sometimes called Advanced Directives, are legal documents accepted in all 50 states. They clearly define a person's wish to decline life-support or medical treatment in certain circumstances, usually when death is imminent. Generally, a living will takes effect when a person becomes terminally ill, permanently unconscious or conscious...

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