Acceptance of Offers and Enforceable Contracts

There must be an offer, acceptance of offer, and consideration in order to create an enforceable contract. Offers may be written, oral or implied (by conduct). Acceptance must be provided to offeror or no contract may be formed.

Zara and her Kittens

First, Zara’s advertisement for the sale of her kittens does not represent an offer. It is merely an invitation for offers to be made (Partridge v Critenden (1968) 2 All ER 425). An invitation cannot be accepted and so it cannot be considered a binding contract.

Xavier led Zara to believe that he had made a reasonable offer by choosing a kitten and advising Zara that he would be back. Zara, it appears, accepted his offer and set aside the chosen kitten in reliance on Xavier’s choice and his promise to return. When Xavier failed to return, he breached the contract.

There are times when the passage of time may indicate revocation; however, here, based on Xavier’s conduct, Zara had no reason to believe the offer had been revoked. In the sales life of a kitten, those three weeks could be the difference between selling a kitten and selling a cat which could be less lucrative for Zara.

Xavier may argue that he revoked his offer by not returning to pick up and pay for the kitten; however, such revocation must be communicated to the other party (Byrne v Van Tienhoven [1880] 5 CPD 344). He should be ordered to perform.

Yvonne and Zara’s interaction is representative of an offer and acceptance, where Yvonne offers the lesser amount of 200; Zara rejects Yvonne’s offer and counteroffers with 300; Once Zara rejects Yvonne’s offer, Yvonne’s offer is null having been replaced with what is for all practical purposes a new offer and Yvonne’s offer can no longer be accepted; Yvonne accepts the terms of the counteroffer thus creating the contract. (Hyde v Wrench (1840) 49 ER 132).

Walter and Zara created a contract upon the sale of the kitten to Walter. No discussion was held about the breed of the kitten being full Burmese or otherwise; however, Zara failed to disclose that fact upon which the buyer relied and may be considered a misrepresentation on Zara’s part (With v O'Flanagan [1936] Ch 575.); however, the buyer failed to have the cat’s full breed status confirmed or denied. According to (Tamplin v. James), if the buyer does not exercise his or her due diligence to confirm or deny an ambiguity in the description of the item being transferred then the buyer suffers the consequences.

It is unclear if Zara’s misrepresentation was intentional or fraudulent, negligent or innocent. Depending on the type of misrepresentation determines any potential recovery Walter may be entitled to.

So, depending on how the courts interpret the contract, either Walter is entitled to no recovery or termination of the contract as Zara will not be held in breach of the same or Zara made misrepresentations to Walter and Walter will recover from Zara.

Amy and her Cousin

Amy’s promise to David is not a binding contract in that Amy derives no benefit from the consideration. Here, the consideration is David successfully attaining a second class degree while working hard. Along those same lines, David suffers no detriment. Benefit and detriment are the underpinnings of the third element of a contract – consideration. It is inconsequential, then, that David attained a higher degree and worked less. (Thomas v. Thomas, 1842).

Amy’s promise to pay her cousin for work performed in the past is not valid consideration and, as such, does not form a contract. Amy does not have to pay Beryl (Re: McArdle, Ch669, Court of Appeal).

Consideration must be tied or traceable to certain performance, meaning that the performance starts with the contract, not before. Past performance clearly does not fit the rule. Here, Beryl performed the tasks without a promise to pay even though she was hopeful her cousin would pay her. Nevertheless, Beryl cannot hold Amy to the promise based on a contractual obligation (Roscorla v. Thomas (1842); Eastwood v. Kenyon (1840); R. v. Clark (1927)).

Amy and Charlie do not have an enforceable contract where the promise to pay a reduced amount owed under the terms of a separate agreement is exchanged for a promise to release that debt in full (Pinnel's Case 1602 5 Rep, 117 Court of Common Pleas).

If the partial payment was at Amy’s request and further requested to be paid sooner than due, with a chattel or to a different location, the partial payment and agreement to accept and release the full debt would be binding. (Pinnel's Case 1602 5 Rep, 117 Court of Common Pleas).

If Charlie paid Amy the full balance he owes on his debt to Amy, the only impact on this scenario in its entirety would be that Amy would have to release Charlie’s debt in full. Beryl would still not have any recourse to collect money from Amy for past performance; and David would not be able to force Amy to pay for his successful college career. These are all separate arrangements with no third-party considerations.

While the only similarities between the kittens and the cousin are that they both revolve around the sale and purchase of goods, the likeness ends there. In the kitten case, there were several issues with offers and acceptances qualifying as acceptable contract terms, the cousin case was more challenged in the area of acceptable terms of consideration. They both demonstrated how contracts are required to be formed in order to be enforceable.