“When one person signifies to another his willingness to do or to abstain from doing anything with a view to obtaining the assent of that other person to such act or abstinence, he is said to make a proposal.”
The person making the proposal is called the ‘offeror’ or ‘promisor’. The person to whom the offer is made is called the ‘offeree’ or ‘promisee’.
Offer and Acceptance
A offers to sell his scooter to B for Rs. 5,000. This is a proposal. A is the offeror or promisor and B is the offeree.
ADVERTISEMENTS:
An offer to be valid must comply with the following rules:
1. Offer may be express or implied:
An offer may be express or may be implied from the conduct of the parties or circumstances of the case.
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Express Offer: An express offer is made by words spoken or written.
Examples:
(1) A says to B, “Will you purchase may car for Rs. 15,000? It is an oral offer.
(2) A, through a letter asks B to buy his car for Rs. 15,000. It is a written offer.
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Implied Offer – An implied offer is not made by words spoken or written. It is implied from the conduct of the parties or from the circumstances.
Example:
(1) Public Transport, like, Railways. DTC in Delhi or MEST in Mumbai offer to carry passengers for a certain fare on a particular route.
(2) Public Telephones or Weighing Machines in public places like, Railway Stations or Cinema Houses offer their services for a certain amount, say one rupee.
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2. Offer may be specific or general:
A specific offer is one which is made to a particular person. It can be accepted by the person to whom it has been made, no one else can accept such an offer.
Example:
A offers to sell his watch to B for Rs. 200. This is a specific offer made to B. It is B alone who can accept this offer and no one else can accept this offer, i.e., C or D cannot accept this offer.
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A general offer is made to the world at large. Therefore, it can be accepted by any person.
Example:
1. A advertised in a Newspaper that he would give Rs. 100 to anyone who finds and returns his lost dog.
2. A company advertised that a reward of Rs. 100 would be given to any person who contracted influenza after using the medicine (Smoke balls) made by the company according to the printed directions. One lady, called Mrs. Carlill, purchased and used the medicine according to the printed directions of the company but suffered from influenza. She filed a suit to recover the reward of Rs. 100. The Court held that there was a contract as she had accepted a general offer by using the medicine in the prescribed manner and as such, she was entitled to recover the reward from the company.
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3. Offer must give rise to legal obligation:
An offer to be valid must create legal relationship between the parties. The very purpose of entering into an agreement is to make it enforceable at a Court of law. If the offer has not been made with this intention it will not become a contract even if it is accepted by the party to whom it was made.
Example:
A promised to pay Rs. 30 to his wife every month. Later, A failed to pay the amount. The wife filed a suit against the husband to recover the amount. The Court held that she could not recover as the promise was not made with an intention to create any legal relationship.
4. Terms of an offer must be definite and certain:
The terms of an offer should not be vague or indefinite.
A has two cars – Ambassador and Fiat. He agrees to sell one of his cars to B for Rs. 20,000.
It is not clear as to which of the cars A has agreed to sell. A might be thinking to sell the Ambassador car while B might be thinking to purchase the Fiat car. The offer is not definite.
5. Offer must be distinguished from an invitation to offer:
An offer must be distinguished from an invitation to offer. The shopkeepers generally display their goods in showcases with price tags. The shopkeeper in such cases is not making an offer so that you can accept it. He is, on the other hand, inviting you to make an offer which he may or may not accept. Thus you cannot compel a shopkeeper to sell the goods displayed in the showcase at the marked price. However, if there is specific law to sell goods at marked price then the seller will have to sell at marked price. For example, during National Emergency essential commodities like sugar etc. have to be sold at marked price.
6. Offer must be distinguished from a mere declaration of intention:
A declaration of intention to make an offer is not an offer. It is regarded as an invitation to offer. An advertisement for sale in a Newspaper or Magazine etc. is not an offer for sale.
A advertised to sell certain furniture by auction, B reached A’s house to purchase the furniture. However, A changed his mind not to sell the furniture. B cannot compel A to sell the furniture or even to recover his damages, i.e., conveyance charges and damages for inconvenience caused to him due to cancellation of the sale.
It should be noted that a general offer can be made through advertisement if the terms are certain and capable of being accepted.
A lost his camera in a DTC bus. He announced a reward of Rs. 100 to the finder who may return it to him. B found the camera after reading the advertisement and returned it to him. B is entitled to the reward.
7. Offer must be communicated:
An offer must be communicated to the person to whom it is made. A person can accept the offer only when he knows about it. If he does not know it, he cannot accept it.
Example:
G sent his servant L to trace his lost nephew. Later on G, announced a reward for tracing the boy. L without knowing about the advertisement of the reward traced the boy and restored him to G. When L came to know of the reward, he claimed it. G refused to give the reward. The Court held that L was not entitled to recover the reward as the offer was not communicated to L. He could not accept an offer which he did not know.
8. Communication of Special Terms:
Special terms of a contract must be communicated. Generally, such cases arise in respect of general offers, like tickets or receipts for depositing luggage at the Railway Station or receipts for clothes given for dry cleaning etc. The rule in these cases is that parties are not bound unless conditions printed are properly communicated.
A passenger was traveling from Dublin to White haven with his luggage. On the back of the ticket, a special condition was printed according to which the Shipping Co. would not be liable for the loss of luggage. However, this condition was not communicated to the passenger in as much as no such words as RT.O. or See Back were printed on the face of the ticket to draw the attention of the passenger. The court held that the passenger was not bound by those conditions as those were not communicated to him. Hence the company was liable to pay for the loss of the luggage.
It should be noted that an acceptor is bound by the condition even if the conditions are printed in a foreign language. He should ask for its translation.
Again, an acceptor cannot even plead that he was illiterate or blind, provided the notice is reasonably sufficient for the class of persons to which he belongs.
Again, it should be noted that the special terms of the contract should be brought to the notice of the offeree at the time of offer was made. If the special terms are brought to the notice of the offeree after the contract was made, the offeree will not be bound by them.
A and his wife took a room on hire in a hotel. After booking the room, they entered the room and saw a notice on the wall of the room. The proprietors not responsible for articles lost or stolen unless handed over to the manager for safe custody.”
Due to the negligence of the hotel staff, their property was stolen. Held, the proprietor of the hotel was liable as the notice was not binding, because it came to the knowledge of the client only after the contract to take the hotel on hire had already been made.
9. Offer must be made with a view to obtaining the consent of the other party to do or to abstain from doing the act:
The offer must be made with an intention to get the consent of the other party to do or to abstain from doing the act and not simply with a view to making known the intention of making an offer.
A tells B, “I may sell my Television if I can get Rs. 2,000 for it. It is not an offer as it has not been made with a view to get the consent of B. It is a mere declaration of intention. Therefore, B cannot accept it by saying. “I can pay you Rs. 2,000 for it.” B is not accepting A’s offer but is making his offer which A may or may not accept.
10. Offer should not impose an unnecessary obligation to communicate non-acceptance:
Thus an offeror cannot say that if acceptance is not communicated by Sunday next, the offer would be considered as accepted.
A offers his car to B for Rs. 20,000 saying, “If you do not reply by Sunday next, I shall presume, you have accepted the offer.”
In this case, no contract will be created even if the acceptor does not reply as the law does not permit a party to impose an unnecessary obligation of the acceptor if he does not want to accept the offer. Thus in the above example, if the acceptor does not accept the offer he will be put to an unnecessary burden of informing the offeror that he does not want to accept the offer.
Tender:
A continuous offer is called a standing offer. For example, in our daily life we do not ask the newspaper vendor daily to supply the newspaper or the grocer to supply bread and butter. In such cases, we do not repeat the offer to the supplier of the above articles every day. We make such offer once for all. If we do not want the supply of such article in future, we ask the supplier to stop the supply of such goods. A tender is a standing offer. It may be specific or continuous.
Continuous or Standing offer :
Very often, tenders are invited for the supply of goods as and when required. In such a case, the tender is a standing offer. When such a tender is accepted it does not become a contract. It simply indicates that as and when goods are required and order will be placed, both the parties are free to revoke the tender.
A agreed to supply coal to B up to 1,000 tons at Rs. 500 per ton as and when required for the year 1978. B placed an order for 10 tons in the month of January, 1978. However, if before any order is placed by B, A revokes his offer as to future supply, A is not bound to supply any coal. Similarly, B is not under an obligation to place the order for the supply of coal with A. B can place an order with any other coal supplier also. B is not prevented from placing an order with any other supplier.
Thus a standing offer does not create a binding contract between the parties. A binding contract is created only when an order according to the terms of the tender is placed with the party accepting the tender.
Sometimes tenders are invited for the supply of specific quantity of goods or service. In such a case, when a tender is accepted it becomes a contract.
Sometimes two parties make similar offers to each other without knowing the offer made by the other. These are called cross offers. In such a case, no binding contract will be created as no one has accepted the offer made by the other.
D of Delhi by a letter makes an offer to M of Mumbai to sell his car for Rs. 10,000. At the same time M of Mumbai makes a similar offer to D of Delhi to buy his (D’s) car for Rs. 10,000. Offers of both D and M cross each other in the post. These offers are called cross offers. Such offers do not constitute acceptance of one’s offer by another. For example, it will not mean acceptance of D’s offer by M or M’s offer by D. Both are making the offer and none of them is accepting the offer. Hence, there is no contract.