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Filling the Empty Shell

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The defendant’s claim that there had been a counter-offer failed. It was not a rejection of the offer, merely an enquiry about it, and the offer was still open to acceptance. g) Technical counter-offers of no importance to the parties will not count as a rejection A counter-offer rejecting a central term means the offer is no longer open to acceptance. However, in the case of mere ancillary terms, if the parties show no concern and go on to contract then the court may ignore the counter-offer. The company secretary for the Railway Company signed and returned it without looking at it.

Cleveland Bridge refused to pay for the three nodes and claimed that BSC was in breach of contract for late delivery of the fourth. Because there was a total disagreement over a major term, the judge in the case found it impossible to recognise that a contract existed. He did order that BSC be paid for what they had supplied. Activity Self-assessment questions 1. Is there a satisfactory method of resolving a ‘battle of forms’? 2. Is there any logic to the outcome of Cleveland Bridge? Key Facts Principles of Formation: Offer and Acceptance 17 ● ● ● ● ● ● ● ● ● ● ● A contract is made where there is an agreement between two parties An agreement is a valid offer followed by a valid acceptance Offer must be distinguished from: w an ‘invitation to treat’ – Pharmaceutical Society of GB v Boots w and from a mere statement of price – Harvey v Facey Competitive tendering is different – Harvela Investments v Royal Trust Co.

B) The acceptance can be in any form It can be in writing, by words, or conduct. Of course, if the offeror requires it to be in a specific form then it must be in that form or it will be invalid. Yates v Pulleyn (1975) An option to purchase land was required to be exercised by notice in writing ‘sent by registered or recorded delivery post’. When the option was sent by ordinary post only, it was invalid. Acceptance can be construed from the conduct of the parties – see Brogden v Metropolitan Railway Co (1877) in (g) below.

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