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Contract Law - Asking Price as Term?

  • 24-03-2010 01:13PM
    #1
    Deus Ex
    Closed Accounts Posts: 52 ✭✭


    Hi, I've just been landed with an impossible moot.

    I need to argue that an adverstisement is an offer, not an invititation to treat. Of course it's not an offer, but I need to argue that it is.

    Could I put forward that the asking price, £3000 or the nearest offer", is a term of the contract? And on the off chance that I can, is there a relevant case which I could cite. Thanks.


Comments

  • #2
    Jo King
    Banned (with Prison Access) Posts: 2,139 ✭✭✭Jo King


    There are some obiter comments in judgments where the judges have commented that they would be prepared to treat an advertised price as a term of a contract and the advertisement as an offer. The usual example given is a shop which advertises a special offer such as a plasma TV for €5 in the window as part of a sale. People queue up for days and then the shop says "invitation to treat". The judges feel that in that scenario they would force the shop to complete the sale to the first customer at €5. The point is discussed in some of the English contract books.


  • #3
    Deus Ex
    Closed Accounts Posts: 52 ✭✭Deus Ex


    That's Jo, sounds like something I could build on.


  • #4
    Tom Young
    Legal Moderators, Society & Culture Moderators Posts: 4,338 Mod ✭✭✭✭Tom Young


    It is not an impossible matter to argue and remember moots are scored on a number of things, not just the substantive law.


  • #5
    MrPudding
    Registered Users, Registered Users 2 Posts: 9,779 ✭✭✭MrPudding


    You could perhaps look at Lefkowitz v. Great Minneapolis Surplus Store, Inc. It is s US case but might give you something to work on, perhaps Carbolic smoke?

    I have a moot coming up myself in a couple of weeks, swinging between excitement and pure terror.

    MrP


  • #6
    Mr. Incognito
    Registered Users, Registered Users 2 Posts: 9,798 ✭✭✭Mr. Incognito


    Hmmmmm.

    Wow, that's a tough one.

    The logic behind invitation to treat is that if the shop runs out it cannot be sued for damages.

    If I was arguing this, I would attack the logic behind it. If the shop runs out and it is an offer a reasonable defence would be that the contract was frustrated. Frustration is an equitable remedy and would get you off the hook.

    In addition under the sale of good act goods must be "as described". One could argue that this may refer to advertised selling price.

    Read the case law to get ideas.

    Minister for Industry V Pimms,
    Pharmacetical Society V Boots Cash Chemists.

    I would also argue that most law is dynamic whilst Contract law is stuck in the 19th Century and needs to be updated. If you take the example of Internet sales, there is a requirement under the EU directive to send a receipt to goods purchased electronically but the vendor does not say that the offer of the price is "accepted" and yet objectively a contract is formed and the goods are sold. I would argue that modern commercial practice has evolved to the extent that a price has become and offer and the old distinctions are absurd.

    Frustration should really be your trump card for the get out of jail free if the old arguments are raised. Make sure you have an argument ready though if they argue self induced frustration as voiding the doctrine though.

    It IS arguable that listed price is an offer and sales and marked down prices are indicative in character to an amendment of an offer before Acceptance is communicated.

    EUREKA moment. What about Europes recent judgement and enforcement against Ryanair that prices had to include ALL hidden charges and taxes- hardly indicative of an invitation to treat which is an offer to make an offer.

    Damn I'm good.


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  • #7
    brian__foley
    Registered Users, Registered Users 2 Posts: 364 ✭✭brian__foley


    Deus Ex wrote: »
    Hi, I've just been landed with an impossible moot.

    I need to argue that an adverstisement is an offer, not an invititation to treat. Of course it's not an offer, but I need to argue that it is.

    Could I put forward that the asking price, £3000 or the nearest offer", is a term of the contract? And on the off chance that I can, is there a relevant case which I could cite. Thanks.

    Not impossible! I haven't read the rest of this thread, but start by looking for things relating to Lefkowitz and away you go. There are many, many examples of where advertisements are offers.

    Edit - Ah, Mr. Pudding has it also. It's a very, very easy point to argue (depending on the advertisement).

    Just query this - what is the rationale behind the rule? And maybe can you think of advertisements that don't actually require to be classes as an i.t.t because of that rationale?


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