Contractual Liability Query
Discussion
(This scenario relates to trying to buy an antique artefact.)
I sent an email to the vendor confirming I would like to purchase the artefact and posted a cheque. The vendor mistook my email for spam and deleted my email. Before my cheque arrived, he sold the artefact to a dealer. He has returned my cheque.
Do I have any claim against the vendor under the Postal Rule because of the email?
I sent an email to the vendor confirming I would like to purchase the artefact and posted a cheque. The vendor mistook my email for spam and deleted my email. Before my cheque arrived, he sold the artefact to a dealer. He has returned my cheque.
Do I have any claim against the vendor under the Postal Rule because of the email?
Not so fast -
(1) ISTR that it remains unclear whether the postal rule applies to emails.
(2) In any event, the email was in fact received, but was deleted unread.
Is there, however, any measurable loss? Would the game be worth the candle?
Antique artefact? I am guessing one of Napoleon Bonaparte's famous sex toys.
(1) ISTR that it remains unclear whether the postal rule applies to emails.
(2) In any event, the email was in fact received, but was deleted unread.
Is there, however, any measurable loss? Would the game be worth the candle?
Antique artefact? I am guessing one of Napoleon Bonaparte's famous sex toys.
Thinking back to learning contract law many moons ago,and that Boots Pharma case, wont his ad for sale be an invitation to treat, your e mail is an offer to buy, albeit not read, so there is no acceptance of your offer, so no contract & no loss
I stand(or rather sit at the minute) to be corrected.
I stand(or rather sit at the minute) to be corrected.
Thomas and Gander v BPE Solicitors (a firm) [2010] EWHC 306 (Ch)
Blair J:
86 The general rule is that the acceptance of an offer is not effective until communicated to the offeror. The “postal rule” is an anomalous exception to the general rule, which is limited to its particular circumstances. It does not apply to acceptances made by some “instantaneous” mode of communication (Chitty on Contracts, 30th edn, paragraph 2-050). This was decided in Entores Ltd v Miles Far East Corporation [1955] 2 QB 327 as regards communications by telex. At page 334, Denning LJ said that in such a case, “The contract is only complete when the acceptance is received by the offeror”. Contrary to the claimants' submissions, in my view the same principle applies to communication by email, at least where the parties are conducting the matter by email, as the solicitors were in this case. However, that does not conclude the question, because issues may remain as to when the email in question was received (and also whether it was received). As Lord Wilberforce put it in Brinkibon Ltd v Stahag Stahl G.m.b.h. [1983] 2 AC 34 (another telex case in which Entores was approved) at page 42:
“Where the condition of simultaneity is met, and where it appears to be within the mutual intention of the parties that contractual exchanges should take place in this way, I think it a sound rule, but not necessarily a universal rule.
…The senders and recipients may not be the principals to the contemplated contract. They may be servants or agents with limited authority. The message may not reach, or be intended to reach, the designated recipient immediately: messages may be sent out of office hours, or at night, with the intention, or upon the assumption, that they will be read at a later time. There may be some error or default at the recipient's end which prevents receipt at the time contemplated and believed in by the sender. The message may have been sent and/or received through machines operated by third persons. And many other variations may occur.
OK, but what if, as here, the email was received but not read?
Blair J:
86 The general rule is that the acceptance of an offer is not effective until communicated to the offeror. The “postal rule” is an anomalous exception to the general rule, which is limited to its particular circumstances. It does not apply to acceptances made by some “instantaneous” mode of communication (Chitty on Contracts, 30th edn, paragraph 2-050). This was decided in Entores Ltd v Miles Far East Corporation [1955] 2 QB 327 as regards communications by telex. At page 334, Denning LJ said that in such a case, “The contract is only complete when the acceptance is received by the offeror”. Contrary to the claimants' submissions, in my view the same principle applies to communication by email, at least where the parties are conducting the matter by email, as the solicitors were in this case. However, that does not conclude the question, because issues may remain as to when the email in question was received (and also whether it was received). As Lord Wilberforce put it in Brinkibon Ltd v Stahag Stahl G.m.b.h. [1983] 2 AC 34 (another telex case in which Entores was approved) at page 42:
“Where the condition of simultaneity is met, and where it appears to be within the mutual intention of the parties that contractual exchanges should take place in this way, I think it a sound rule, but not necessarily a universal rule.
…The senders and recipients may not be the principals to the contemplated contract. They may be servants or agents with limited authority. The message may not reach, or be intended to reach, the designated recipient immediately: messages may be sent out of office hours, or at night, with the intention, or upon the assumption, that they will be read at a later time. There may be some error or default at the recipient's end which prevents receipt at the time contemplated and believed in by the sender. The message may have been sent and/or received through machines operated by third persons. And many other variations may occur.
OK, but what if, as here, the email was received but not read?
Blair J continues -
90. Once one sets aside the "postal rule" as inapplicable to email communications, the question whether an email acceptance is effective when it arrives, or at the time when the offeror could reasonably be expected to have read it, is not a straightforward one, and does not appear to be settled by authority. On the basis that it must be resolved by reference to the intentions of the parties, by sound business practice and in some cases by a judgment where the risks should lie (Brinkibon at page 42)...
90. Once one sets aside the "postal rule" as inapplicable to email communications, the question whether an email acceptance is effective when it arrives, or at the time when the offeror could reasonably be expected to have read it, is not a straightforward one, and does not appear to be settled by authority. On the basis that it must be resolved by reference to the intentions of the parties, by sound business practice and in some cases by a judgment where the risks should lie (Brinkibon at page 42)...
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