Offer vs invitation to treat

1. 一般廣告都係invitation to treat , 但我知有例外會變成offer e.g. Carlill v. Carbolic Smoke Ball Co. ,但對依個case,我未分清,到底

有咩行為/成分之下,廣告會change from invitation to treat to offer?係對象?intention?

2. bilateral contract vs unilateral offer, two kind of offer?

what difference between them? i want to know the explanation as well the definition. thx


Intention question

in a business situation , there is a presumed that an agreement formed is a legally binding contract. Can i say that, the advertisement is the business action, so the company have the intention to make a contract ?

更新 2:

同Carlill v. Carbolic Smoke Ball Co吾同,如果間公司只係廣告做promises a money back $10,000,但冇存錢入銀行,佢算吾算有business presumption that an agreement formed is a legally binding contract?

更新 3:

a7day6night :

抱歉,因為你有時將幾個問題答案夾埋一齊寫, 我睇得好亂,你可以逐個reply嗎?

Q1. 撇除Carlill v. Carbolic Smoke Ball Co 個case, 你意思係只要個ads 係有intention to make "an offer to the whole world",就可以由invitation to treat轉做offer?

Q2. (承接Q1)但ads一定係畀全世界睇,咁咪好矛盾?

Q3. unilateral contract is invitation to treat依句吾明點解,

更新 4:

Q4. (承接Q3)照你講法 bilateral contract 又算係offer or invitation to treat?

Q5. 如果Ads is never intended to create a binding obligation,甘 business presumetion又幾時用?

更新 5:

Q6. 最後果題, 我係你reply裡面睇吾出答案, 同Carlill v. Carbolic Smoke Ball Co吾同,如果間公司只係廣告做promises a money back $10,000,但冇存錢入銀行,佢算吾算有business presumption that an agreement formed is a legally binding contract?

1 個解答

  • 7 年前

    1.) The Carbolic case was a "unilateral contract" since it is one sided. Usually a unilateral contract is "invitation to treat", however, in that case, the court think the company has shown its intention to make "an offer to the whole world" by depositing money into the bank to show that they are "serious" (the intention to pay) about their repayment for those who inhale the smoke ball but did not have any effect. A business agreement, opposite to domestic agreement is assumed to have "an intention to create legal relations".

    Advertisement itself is mere puff and is never intended to create a binding obligation, no offer to any particular person, even if there were offer, it fail to notify Plaintiff's acceptance. The classic example is Partridge v. Crittenden 1968. Carbolic Smoke Ball case has found a contract because of the deposit, it is not because it is a business action. Furthermore, stocks are presumed to be limited, if there is a leaflet saying offer for sale of orange today, and you attend to the shop and they sold out, you cannot claim there is a contract.

    Note also the case of Pharmaceutical Society of Great Britain v. Boots Cash Chemists (Southern) Ltd 1953 and Fisher v. Bell 1961 - especially to Lord Parker point "the display of an article with a price on it in a shop window is merely an invitation to treat. It is no sense an offer for sale the acceptance of which constitutes a contract" -note also, although it is settled rule, on application to 'self-service stores' it has been criticised.

    2.) The word "bi-" itself has the meaning of two, for example, bilingual judge meaning a judge that can speaks, at least, two different languages. Bilateral agreement will then mean an agreement that is both sided, and unilateral as one sided, as meaning one side offering for an agreement.

    2013-11-18 12:10:14 補充:

    I recommend the book Cheshire, Fifoot & Furmston's Law of Contract (Oxford:University Press), please consider buying and reading it, it helps you to learn the subject more clearly and gain interest to the subject.

    2013-11-19 12:36:54 補充:

    1.) 不是,ADs一般都係"mere puff",並無"offer"或"binding obligation"。Carbolic有"offer"係因為佢將錢存入銀行,被法官認為公司有intention去bind佢0既承諾,"offeror has intention for it to be bound"

    2013-11-19 12:37:24 補充:

    2.) ADs 係"For the whole world",但有judge都話"供求係有限度的",offeror不能提供promise給所有前來perform的人。

    3.)&4.) Unilateral offer係單方面承諾,就像Partridge和Carbolic,他們都是單方面的承諾(A promise in return for an act)。Bilateral offer係雙方互相承諾(a promise in return of a promise)。兩者都是等待有人來"Communicate offer"。

    2013-11-19 12:37:59 補充:

    eg $100 will be paid to anyone who find my dog - unilateral offer

    eg I will give you $100 if you find my dog - bilateral offer

    it is the promise (not the form of an advertisement) is relevent here.

    2013-11-19 12:38:54 補充:

    Unilateral contract, result from unilateral offers, are distinct from bilateral contracts in which a promise is exchanged for a promise. In a unilateral contract, the party to whom the offer is made does not have to promise to do anything in return.

    2013-11-19 12:39:23 補充:

    It need not communicate it acceptance to the offeror.

    5.) Execpt if they are serious on their offer: Weeks v. Tybald 1605, also Carbolic. Commerical agreement has presumption of intention to create legal relation ie intented a binding obligation. Ads are generally not bind.

    2013-11-19 12:39:41 補充:

    6.) As above, it is an unilateral offer waiting to be accept, by act or some performance. Before it is accept, it is not bind. Further, offeror are free to revoke before accept by offeree. There is no business presumption for the ADs that intent legally bind, unless they are serious on their terms,