When is a contract not a contract
Discussion
allergictocheese said:
trashbat said:
contract including those T&Cs doesn't exist. It's not necessarily true that no contract exists at all.
What effect do you believe the magazine printing the advert has had on the issue of whether a contract exists or not? I might argue their conduct in printing the ad affirms the contract.Case closed, that'll be £500 please.
Bluebarge said:
It affirms the contract on the terms they offered, ie those sent in the confirmation email which it was made clear would be the point at which the contract would arise. The girl said she would agree the price subject to the confirmation e-mail which she would send through. So, if there is any contract at all, it is on those terms, but the fact that the OP refused to sign suggests that there is no contract.
Case closed, that'll be £500 please.
I'm not sure that works does it? Doesn't the point about the contract being affirmed by actions rather than formalities relate to when one party proposes terms and the other party does something - some action - that constitutes acceptance of those terms?Case closed, that'll be £500 please.
If I (the magazine) propose some terms to you (the OP), you can be deemed to have accepeted them by your actions, but I can't argue that something I did (printing the ad) constituted you accepting the terms I proposed - can I?
swerni said:
trashbat said:
It can't be long now until the Carbolic Smoke Ball makes its appearance 
It's been 25 years since I studied contract law and they are about the only two cases I remember.
Wonder if they still teach them
Carbolic smoke balls and snails in ginger beer. Still going strong say the youngsters in my office.SK425 said:
I'm not sure that works does it? Doesn't the point about the contract being affirmed by actions rather than formalities relate to when one party proposes terms and the other party does something - some action - that constitutes acceptance of those terms?
That would be my argument.However, with such contractual matters, the devil is in the detail, sometimes the smallest details make the difference.
swerni said:
Don't mean to be rude, neither of you appear understand the fundamentals of contract law
The offer isn't made by the seller, it's made by the buyer.
The seller then accepts or rejects the offer
What you think is the offer by the seller isn't, it's an invitation to treat.
http://en.wikipedia.org/wiki/Pharmaceutical_Societ...
It doesn't always work that way though; I'd say that advertising a car for sale is an ITT and if someone comes and looks at it and hands me the amount listed in the advert it is still down to me to accept (or not) as he is making me an offer but if in discussions with the potential buyer I say something like "give me £XXX and it's yours" then I am making an offer to sell and not an ITT - if he hands me the cash - it's his car.The offer isn't made by the seller, it's made by the buyer.
The seller then accepts or rejects the offer
What you think is the offer by the seller isn't, it's an invitation to treat.
http://en.wikipedia.org/wiki/Pharmaceutical_Societ...
As with all things legal, there are some pretty straightforward principals and then lots of details, circumstances and caveats - the buyer may typically make the offer but it doesn't have to be that way and a phone call from the rep in the OPs case offering a specific price for a well specified service probably isn't just an invitation to treat.
Of course that would then bring me to suggest that there was no contract as the rep had mentioned the email in the conversation thus tying the T&Cs to the contract and then that in turn was possibly revoked when the OP refused to agree with the T&Cs and the company implied acceptance of this by printing the first advert!
swerni said:
Sheepshanks said:
rich888 said:
As far as I understand contractual law, the initial offer by the seller had been accepted by the buyer, so any additional terms and conditions is now irrelevant.
I agree with you, unless it was pointed out that the offer was subject to standard T's & C's etc.The $64,000 question though, is: what are you going to do about it?
The offer isn't made by the seller, it's made by the buyer.
The seller then accepts or rejects the offer
What you think is the offer by the seller isn't, it's an invitation to treat.
http://en.wikipedia.org/wiki/Pharmaceutical_Societ...
If in the OPs case, the 'offer' from the advertiser was an advert, or a poster or similar 'offering' a double page spread for 50p, then I would agree.
That isn't necessarily the case here. There has been negotiation between the parties. It is relatively irrelevant whether the advertiser is the offeror or the offer in this instance; the crux is the point of formation of contract (if any).
Maybe your analysis is that the advertiser's sales rep purporting to agree to place the ad for £x and confirm via email with a click button with T&Cs was the invitation to treat.
It seems from the facts presented that the contract was negotiated and formed during a telephone call, by two willing parties, without caveat as to whether agreement was 'subject to contract'.
swerni said:
johnfm said:
swerni said:
Sheepshanks said:
rich888 said:
As far as I understand contractual law, the initial offer by the seller had been accepted by the buyer, so any additional terms and conditions is now irrelevant.
I agree with you, unless it was pointed out that the offer was subject to standard T's & C's etc.The $64,000 question though, is: what are you going to do about it?
The offer isn't made by the seller, it's made by the buyer.
The seller then accepts or rejects the offer
What you think is the offer by the seller isn't, it's an invitation to treat.
http://en.wikipedia.org/wiki/Pharmaceutical_Societ...
If in the OPs case, the 'offer' from the advertiser was an advert, or a poster or similar 'offering' a double page spread for 50p, then I would agree.
That isn't necessarily the case here. There has been negotiation between the parties. It is relatively irrelevant whether the advertiser is the offeror or the offer in this instance; the crux is the point of formation of contract (if any).
Maybe your analysis is that the advertiser's sales rep purporting to agree to place the ad for £x and confirm via email with a click button with T&Cs was the invitation to treat.
It seems from the facts presented that the contract was negotiated and formed during a telephone call, by two willing parties, without caveat as to whether agreement was 'subject to contract'.
Had Rich accepted those terms a contract would have been formed, he didn't so it wasn't.
I think an offer is made by the buyer accepted by the seller, not the other way round, clearly not all communicate from the seller is an invitation to treat, they have to accept ( or reject the offer)
Nice to see Trashbat's smokeballs make an appearance, he must be psychic
ISNAL, but wish one would come along
By your logic, a seller can never in any circumstances be an offeror. Clearly this cannot be true.
SK425 said:
Bluebarge said:
It affirms the contract on the terms they offered, ie those sent in the confirmation email which it was made clear would be the point at which the contract would arise. The girl said she would agree the price subject to the confirmation e-mail which she would send through. So, if there is any contract at all, it is on those terms, but the fact that the OP refused to sign suggests that there is no contract.
Case closed, that'll be £500 please.
I'm not sure that works does it? Doesn't the point about the contract being affirmed by actions rather than formalities relate to when one party proposes terms and the other party does something - some action - that constitutes acceptance of those terms?Case closed, that'll be £500 please.
If I (the magazine) propose some terms to you (the OP), you can be deemed to have accepeted them by your actions, but I can't argue that something I did (printing the ad) constituted you accepting the terms I proposed - can I?
Bluebarge said:
at no point is there evidence of a meeting of minds, which is pretty fundamental to a binding contract.
The 'meeting of minds' thing is similar to how you are told in GCSE science, that an atom is the smallest particle.It's not actually true. One such scenario is that the actions of a party mean that a 'reasonable person' could only understand that a contract is in place (IIRC the 'reasonable person' specification has been made even more complex, but I don't want to tangent off...)
So, if a party negligently or purposefully withholds terms that they wanted to incorporate into a contract, but enters into a contract regardless, then that's too late, especially when both parties have begun performing the contract.
If the advertiser had not yet started performing the contract, I'd say that things could be argued either way, however, running the advert can only be construed that the advertiser deemed that there was a contract in place.
Edited by JustinP1 on Thursday 26th February 09:48
From experience it works like this....
It's considered reasonable this scenario may entail standard t and c, which are not discussed in advance but ultimately form part of the contract.
All that is needed is for the other party to have the opportunity to read them within a reasonable timescale. You don't even have to tick the box, or actually read them - acceptance can be tacit.
If you just ignore the tick box, you can still be deemed to have accepted the terms and there is a contract. In this case the terms were clearly rejected though, therefore no contract exists. Again, if you rejected the magazine's terms and they carried on without responding, you could say they have agreed on this basis - but given they are sticking to their guns that doesn't work.
The best you can say is that a contract might exist on that first advert, without those terms and conditions. But that doesn't extend to the next 12 months!
It's considered reasonable this scenario may entail standard t and c, which are not discussed in advance but ultimately form part of the contract.
All that is needed is for the other party to have the opportunity to read them within a reasonable timescale. You don't even have to tick the box, or actually read them - acceptance can be tacit.
If you just ignore the tick box, you can still be deemed to have accepted the terms and there is a contract. In this case the terms were clearly rejected though, therefore no contract exists. Again, if you rejected the magazine's terms and they carried on without responding, you could say they have agreed on this basis - but given they are sticking to their guns that doesn't work.
The best you can say is that a contract might exist on that first advert, without those terms and conditions. But that doesn't extend to the next 12 months!
Z.B said:
From experience it works like this....
It's considered reasonable this scenario may entail standard t and c, which are not discussed in advance but ultimately form part of the contract.
All that is needed is for the other party to have the opportunity to read them within a reasonable timescale. You don't even have to tick the box, or actually read them - acceptance can be tacit.
If you just ignore the tick box, you can still be deemed to have accepted the terms and there is a contract. In this case the terms were clearly rejected though, therefore no contract exists. Again, if you rejected the magazine's terms and they carried on without responding, you could say they have agreed on this basis - but given they are sticking to their guns that doesn't work.
The best you can say is that a contract might exist on that first advert, without those terms and conditions. But that doesn't extend to the next 12 months!
That's not how it works in law though. Yes, there is no need in law for a tick box, but there is a need in law to supply terms before a contract is entered into, otherwise those terms are no part of the contract.It's considered reasonable this scenario may entail standard t and c, which are not discussed in advance but ultimately form part of the contract.
All that is needed is for the other party to have the opportunity to read them within a reasonable timescale. You don't even have to tick the box, or actually read them - acceptance can be tacit.
If you just ignore the tick box, you can still be deemed to have accepted the terms and there is a contract. In this case the terms were clearly rejected though, therefore no contract exists. Again, if you rejected the magazine's terms and they carried on without responding, you could say they have agreed on this basis - but given they are sticking to their guns that doesn't work.
The best you can say is that a contract might exist on that first advert, without those terms and conditions. But that doesn't extend to the next 12 months!
If a contract existed before the terms were supplied, if later terms were not accepted this does not nullify a contract.
The contract was for 12 adverts, the company cannot unilaterally change that agreement after one advert any more than a builder can renegotiate a fixed price house build after he's put in the foundations.
JustinP1 said:
The contract was for 12 adverts, the company cannot unilaterally change that agreement after one advert any more than a builder can renegotiate a fixed price house build after he's put in the foundations.
Well, when you say "cannot"....In the OPs case, who knows whether he's technically right or wrong. It doesn't matter really, as it's not realistic to do anything about it.
And if the builder says the job doesn't make sense, what are you going to do - sue him to force him to carry out the work? That's going to produce a great job. Or gt it done by someone else and then sue the builder for the difference...as he puts the company into liquidation?
If these things can't be sorted out directly between the parties involved, then you're stuffed.
Sheepshanks said:
JustinP1 said:
The contract was for 12 adverts, the company cannot unilaterally change that agreement after one advert any more than a builder can renegotiate a fixed price house build after he's put in the foundations.
Well, when you say "cannot"....In the OPs case, who knows whether he's technically right or wrong. It doesn't matter really, as it's not realistic to do anything about it.
And if the builder says the job doesn't make sense, what are you going to do - sue him to force him to carry out the work? That's going to produce a great job. Or gt it done by someone else and then sue the builder for the difference...as he puts the company into liquidation?
If these things can't be sorted out directly between the parties involved, then you're stuffed.
JustinP1 said:
That's not how it works in law though. Yes, there is no need in law for a tick box, but there is a need in law to supply terms before a contract is entered into, otherwise those terms are no part of the contract.
If a contract existed before the terms were supplied, if later terms were not accepted this does not nullify a contract.
The contract was for 12 adverts, the company cannot unilaterally change that agreement after one advert any more than a builder can renegotiate a fixed price house build after he's put in the foundations.
I think you take a narrow view. The time a contract is agreed doesn't have to be the time it comes into effect. In this case the magazine clearly intended that it was subject to conditions. The conditions were rejected, therefore no contract. However, if he'd waited 2 months to read the terms and accepted them it makes no difference to the effective date. The problem comes when people don't read the terms at the time and then try to wriggle out of it later on. Then it's for the court to determine whether a contract was formed, but simply not bothering to read the terms doesn't prevent there being a contract. If a contract existed before the terms were supplied, if later terms were not accepted this does not nullify a contract.
The contract was for 12 adverts, the company cannot unilaterally change that agreement after one advert any more than a builder can renegotiate a fixed price house build after he's put in the foundations.
Z.B said:
JustinP1 said:
That's not how it works in law though. Yes, there is no need in law for a tick box, but there is a need in law to supply terms before a contract is entered into, otherwise those terms are no part of the contract.
If a contract existed before the terms were supplied, if later terms were not accepted this does not nullify a contract.
The contract was for 12 adverts, the company cannot unilaterally change that agreement after one advert any more than a builder can renegotiate a fixed price house build after he's put in the foundations.
I think you take a narrow view. The time a contract is agreed doesn't have to be the time it comes into effect. In this case the magazine clearly intended that it was subject to conditions. The conditions were rejected, therefore no contract. However, if he'd waited 2 months to read the terms and accepted them it makes no difference to the effective date. The problem comes when people don't read the terms at the time and then try to wriggle out of it later on. Then it's for the court to determine whether a contract was formed, but simply not bothering to read the terms doesn't prevent there being a contract. If a contract existed before the terms were supplied, if later terms were not accepted this does not nullify a contract.
The contract was for 12 adverts, the company cannot unilaterally change that agreement after one advert any more than a builder can renegotiate a fixed price house build after he's put in the foundations.
In an ideal world would the magazine want the contract subject to terms? Of course. But if you want to introduce them you need to do that before the contract, is formed, not after.
I totally agree that the time a contract is agreed is separate to when it is performed. The pertinent and unavoidable point is, the OP rejected the additional terms.
At that point, the magazine could have put their foot down and they could argue when a contract is formed, and told the OP to accept the terms or get lost. They chose not to, and chose to accept his business and begin to perform the contract on the basis that the terms were not incorporated, as the OP made clear.
The totally unavoidable point is if the magazine did not consider a contract to be in place why did they print the advert?
What I'm saying, probably in an unclear way, is that I don't think the terms would be held to be a variation to the contract but part of the original agreement. The OP is just vainly looking for a technicality to suit his own purposes. It's quite normal to reach agreement in principle verbally, then finalize in writing stating any standard terms as applicable. So far as I can see that is all that has happened here. Usually people just agree to whatever at this stage, if not it's back to negotiations. As for the first month, they can print what they like for free, but no agreement no contract - they are just offering goodwill. Unless the OP has agreed to pay for this as a separate item.
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