Advice Style Contral law - Free Essay Example

Sample details Pages: 10 Words: 3031 Downloads: 5 Date added: 2017/06/26 Category Law Essay Type Cause and effect essay Tags: Act Essay Advice Essay Did you like this example? Introduction The situation between Marina and Michelle, the problem issue as follow, in the situation of this happen, Marina role as offeror and Michelle role as offeree, the meaning between the completed binding contract between offeror and offeree, as the job of the offeror, ità ¢Ã¢â€š ¬Ã¢â€ž ¢s must be willing to enter the legal binding contract with the specific of the terms and condition and inviting the other parties which is offeree to accept this offer. As the role of the acceptance is disqualified to change the agreement by offerer, presence of consideration on the parties with full capacity to entry the agreement when the offer is accepted. According to the general rule of Contract Act 1950 (Revised 1970), they need to know that on Section 2 when one parties signifies to another his willingness to do or abstain from doing, with the view to obtaining the assent of that to the act or abstinence, he is said to make a proposal Section 4(1) Contracts Act 1950 that the communication of a proposal is complete when it come to the knowledge of the person to whom it is made. Don’t waste time! Our writers will create an original "Advice Style Contral law" essay for you Create order Using the Contract Act 1950 (Revised 1970) into the situation with Marina and Michelle, Marina send the offer to Michelle, when Michelle accepted, there will be the binding contract between Marina and Michelle. Giving an example, Kuga want to selling his second hand household to Wary in the value of RM 500,000 to given two day to thinking, when Wary is accepted the offer there will be the binding contract between Kuga and Wary and the trading is completed. Deeply to the situation, Marina send her offer to Michelle by fax at 4pm (Malaysia Time) same day, and given two day to agree this agreement, but before of the day of the agreement Marina wants to revoke her offer and using fax to send a revocation letter, she canà ¢Ã¢â€š ¬Ã¢â€ž ¢t go thought to Michelle so she left the message to the security officer. After the day of the acceptance, Michelle has agreed the agreement and on the same day Michelle just knew that the offer has revoked. 1 The question arise that whe ther Marina has a right way to sending the offer and did she inform to the suitable third party? Offer and Acceptance is a traditional approach in contract law which is used to determine when an agreement exists between two parties. In order to constitute a contract, there must be an offer by one person to another and an acceptance of that offer by the person to whom is made. A legally binding offer in order to be valid will have to include clearly stated terms because sometimes a statement may be indefinite to consist of a valid offer. Also, an offer will include intention to do business and as a final feature the offer must be communicated to the offeree. The communication of an offer may be written or spoken but it may usually be by conduct. An offer can be terminated by rejection done by offeree and also by the lapse of time in section 6 (b) Contract Act 1950 , the length of time, it will out automatically terminates when that time limit expires. The counter offer will kil l off the original offer. For example in case of Hyde v Wrench (1840) Wrench (D) offered to sell his estate to Hyde for 1200 pounds and Hyde (P) declined. Wrench then made a final offer to sell the farm for 1000 pounds. Hyde in turn offered to purchase the property for 950 pounds and Wrench replied that he would consider the offer and give an answer within approximately two weeks. Wrench ultimately rejected the offer and the plaintiff immediately replied that he accepted Wrenchà ¢Ã¢â€š ¬Ã¢â€ž ¢s earlier offer to sell the real estate for 1000 pounds. Wrench refused and Hyde sued for breach of contract and sought specific performance, contending that Wrenchà ¢Ã¢â€š ¬Ã¢â€ž ¢s offer had not been withdrawn prior to acceptance. There was no contract. Where a counter offer is made this destroys the original offer so that it is no longer open to the offeree to accept. 2 Decision of the court said that the plaintiffà ¢Ã¢â€š ¬Ã¢â€ž ¢s actions showed that he intended to reject b oth the defendantà ¢Ã¢â€š ¬Ã¢â€ž ¢s offers and this meant he was no longer able to revive them by changing his mind and making a subsequent acceptance. If either party loses its contractual capacity, this will also cause an offer to lapse. For example, if a person were declared bankrupt or were to become insane, this could result in that person losing their contractual capacity, thus causing an offer to lapse. The revocation of an offer is the general rule is that an offer can be revoked by the offeror at any time before acceptance. There are exceptions to this general rule if the offer is made in the form of an option or made under seal in the form of a deed. An invitation to treat made by one party to another is not an offer. An invitation to treat is made at an opening stage in the making of an agreement, where one party seeks to ascertain whether the other would be willing to enter into a contract. To distinguish between an offer and an invitation to treat it is necessary to look at the intention of the person making it. It is not an offer unless it was made with the intention that it should be binding as soon as the person to whom it was addressed communicates hi assent. Display of goods in a shop as in advertisements generally do not constitute a proposal to sell. The shop owner merely holds himself prepared to consider proposals made to him at the suggested prices. The invitation is not capable of being accepted as it is not a proposal. The proposal in fact made by the customer when he or she selects the desire goods for payment at the counter. An acceptance is a final and unqualified acceptance of the terms of an offer. Unless it can be shown that there was such an acceptance, then there is no contract. Where the offeror sets out his offer and request an answer of yes or no from the offeree, it is not difficult to determine whether or not there has been an acceptance. In addition to being a firm and unqualified acceptance of all the terms of the offer, the fact of acceptance must normally be communicated to the offeror before there is concluded contract. 3 The offeree need to fulfil it must be communicate with the acceptance (offeror). The mode letter or so on. The law go on to say à ¢Ã¢â€š ¬Ã…“silenceà ¢Ã¢â€š ¬Ã‚  does not constitute acceptance. The example case is Felthouse v Bindley its about horse. In Felthouse v Bindley (1862), the claimant wished to buy a horse from his nephew. An uncle and his nephew discussed the matter of the sale of the nephewà ¢Ã¢â€š ¬Ã¢â€ž ¢s horse to the uncle but there had been some confusion about the price. The nephew sent his uncle a letter. The uncle subsequently wrote to the nephew, offering to pay  £30 and 15 shillings and saying, à ¢Ã¢â€š ¬Ã‹Å"If I hear no more about him, I consider the horse mine at that price.à ¢Ã¢â€š ¬Ã¢â€ž ¢ The nephew was on the point of selling off some of his property in an auction. He did not reply to the uncleà ¢Ã¢â€š ¬Ã¢â€ž ¢s l etter, but did tell the auctioneer to keep the horse out of the sale. The auctioneer forgot to do this and the horse was sold. It was held that the uncle had no rights to impose upon the nephew a sale of his horse unless he chose to comply with the condition of writing to repudiate the offer. It was clear that the nephew intended his uncle to have the horse but he had not communicated his intention to his uncle, or done anything to bind himself. Nothing, therefore, had been done to vest the property in the horse in the plaintiff. There had been no bargain to pass the property in the horse to the plaintiff, and therefore he had no right to complain of the sale. It has been pointed out by the Court of Appeal in Re Select move Ltd (1995) that an acceptance by silence could be sufficient if it was the offeree who suggested that their silence would be sufficient. Thus in Felthouse, if the nephew had been the one to say that if his uncle heard nothing more he could treat the offer a s accepted, there would have been a contract. 4 Acceptance must be done only by the parties to the agreement not privacy to contract means a third party to a contract does not involve. The general rule is that acceptance must be communicated in order that a contract is formed. The party purporting to accept the offer must have authority in order for it to be accepted. This principle was demonstrated in the case of Powell v Lee (1908) .The plaintiff applied for a job as a headmaster of a school. The managers of the school considered his application and decided to appoint him. One of the managers, without the permission of the others, telegrammed him advising that his application had been successful. A further meeting of managers was held in which the decision was overturned and another person was appointed to the position. Powell sued for breach of contract. Powell failed in his action for breach of contract. Acceptance of an offer will only be effective if it is communicate d by the acceptor or the acceptorà ¢Ã¢â€š ¬Ã¢â€ž ¢s authorized agent. The county court judge held that there was no contract as there had been no authorized communication of intention to contract on the part of the body that is the managers, alleged to be a party to the contract. This decision was upheld by the Kings Bench Division. However, the decision of the court was different from that in Powell v. Lee. The revocation of an offeror may revoke an offer at any time before acceptance takes place. Communication by a third party who is not acting on his behalf as an agent is probably insufficient to constitute an effective revocation. The example cases are Dickinson v Dodds (1876) :- On Wednesday, June 10, 1874 Dodds (D) sent Dickinson (P) a memorandum in which he agreed to sell a specified piece of land for 800 pounds with the offer held open until 9AM on 12 June. Dickinson decided to accept on 11 June but did not advise Dodds immediately. Later on the 11th Dickinson was informed by a third party that Dodds had sold to someone else. Dickinson then purported to accept the offer. Dodds replied that it was too late were the property had already been sold. 5 The court was held the offer had been effectively revoked. Therefore no contract existed between the parties. There was no obligation to keep the offer open until Friday since had provided no consideration in exchange for the promise. However, the revocation of the offer must be communicated to the offeree. Unless and until the revocation is so communicated, it is ineffective. In Byrne v Van Tien hoven (1880), in this case the defendant posted a letter to the plaintiffs on 1st October offering to sell 1,000 boxes of tinplateà ¢Ã¢â€š ¬Ã¢â€ž ¢s to the plaintiff. The plaintiffs received the letter on the 11th of October and sent acceptance by telegram on the same day. On the 8th of October a second letter had been sent from the defendants withdrawing their offer, this was received by the plai ntiffs on the 20th October. It was held that there was a binding contract between the parties because the revocation of the offer posted on 8 October was not effective till 20 October when it was received by the plaintiff but in the meantime, the letter had already accepted the offer on 11 October when the telegram was sent. The contract had already been made. Between the case as above for Powell v Lee Dickinson and Dodds, there is the different situation for the two cases to bring in, this is the different with who is the person they should inform and who is the related person to inform. On the situation between Marina and Michelle, ità ¢Ã¢â€š ¬Ã¢â€ž ¢s is Marina did the right action to inform to the Security Officer, for the Contract Act 1950 (Revised 1970), of Section 6, by the revocation to communicate to the third party is a valid revocation offer but not most of the third, some of the third party is not related to this agreement, either Marina can contact to her Marinaà ¢Ã¢â€š ¬Ã¢â€ž ¢s business partner, colleague , secretary who is related to this agreement, there will be the valid revocation offer, if Marina inform to the person who are not related to this case such like security, maid, babysitter etc , there will become the invalid offer, if she inform to these two parties is more safety, like inform security guard and after one hour contact Michelle assistance is more safety. 6 There will be the problem with the time zone and lacking with the different when Marina want to revoke the offer, but on that situation is able Marina using fax to revoke the offer? In case of Entorres v Miles Far East ( 1955), Entorres was a London-based trading company that sent an offer for the purchase of copper cathodes by telex from a company based in Amsterdam. The Plaintiffs are an English company. The Defendants are an American corporation with agents all over the world, including a Dutch company in Amsterdam. . The Plaintiffs say that the contract was made by Telex between the Dutch company in Amsterdam and the English company in London. Communications by Telex are comparatively new. Each company has a tele printer machine in its office and each has a Telex number like a telephone number. When one company wishes to send a message to the other it gets the Post Office to connect up the machines. Then a clerk at one end taps the message on to his machine just as if it were a typewriter and it is instantly passed to the machine at the other end which automatically types the message on to paper at that end. It was held that the contract was formed in London. The instant nature of telex meant that regular rules of acceptance by post did not apply. The general principle that acceptance takes place when communicated applies to all instant forms of communication. Bring in to the case of Entorres v Miles Far East, there is during the lack time between Vienna and London, but there must be followed by the Vienna, because the offer is maki ng at Vienna. There is not such different with the time zone; because Marina is using fax is a kind of instantaneous communication, is a directly fax to them, there is no such thing between the time zone. Marina send her offer by fax at 4pm (Malaysia Time) on 13th July 2 014. 7 Taking an example, Kuga is at Kuala Lumpur, Malaysia Wary is at Mumbai, India, Kuga wants to fax an offer letter to Wary who is located at Mumbai India, there have been fax properly and send it to Wary and given 3 days to think about that whether she want to accept the offer. When the time of the acceptance, she Kuga can revoke the offer before Wary want to accept when Wary send the confirmation offer is too late, and Wary canà ¢Ã¢â€š ¬Ã¢â€ž ¢t blame to Kuga that there is matter between the time zone, she must following the time which is located that place which is making the offer. The common law for the instantaneous communication that evenly there is the lack between the time zone, is not requir e using the period time of the acceptance who is located at the place, must be accordingly follow the offer time who is located at that place. The postal rule does not generally apply to electronic communications. For example , In case of Brinkibon v Stahag Stahl (1983) ,the buyers, an English company, by a telex, sent from London to Vienna, accepted the terms of sale offered by the sellers, an Austrian company. The buyers issued a writ claiming damages for breach of the contract. The House of Lords held that the service of the writ should be set aside because the contract had not been made within the courts jurisdiction. Lord Wilberforce stated that the present case is, as Entores itself, the simple case of instantaneous communication between principals, and, in accordance with the general rule, involves that the contract if any was made when and where the acceptance was received. This was in Vienna 8 conclusion Making a conclusion for the Malaysia Contract Act 1950 (Revised 1970), for the result between with Marina and Michelle that there was a valid binding contract between this two of the parties, because on the common law said when the person who wants to invoke the offer can be inform to the third party but must be the related person. If Marina inform the revocation to Michelleà ¢Ã¢â€š ¬Ã¢â€ž ¢s secretary, there will become an invalid binding contract between this two of the parties, but must be concern that must be inform to Michelle or the third party who are related before Michelle as agree the agreement. Making another example, if Kuga changed his mind to revoked the offer to Wary, she can using two ways to revoke the offer either telex or telephone. For my suggestion to do it both, evenly there is the instantaneous communication there is no doubt to the time zone, need to be according to the place for the time zone, by using the case of Brinkibon Ltd v Stahag Stahl. Giving another condition, when Kuga using the telephone to revoke to the offer she just can contact with Waryà ¢Ã¢â€š ¬Ã¢â€ž ¢s assistance to become a valid revocation, if she inform to the janitor from the Waryà ¢Ã¢â€š ¬Ã¢â€ž ¢s company, there will becoming an invalid revocation offer, because according to the Malaysia Contract Act 1950 (Revised 1970) that must be inform the person who are related with the third party. So this is the condition Marina and Michelle must be fulfill as above the condition which mention and fulfill. 9 Reference : Cheong May Fong , Acceptance, Volume 1 , PP 33-64 ,Available from Contract Law in Malaysia [ Accessed 10 January 2015 ] 10